Flowers v Finlayson
[2021] SASCFC 3
•3 February 2021
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
PEEK J: I would dismiss the appeal. I agree with the reasons of Lovell J.
STANLEY J: I would dismiss the appeal. I agree with the reasons of Lovell J.
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.
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 by way of rehearing
An appeal to this Court from a decision of the Tribunal following a hearing is in the nature of a rehearing. The principles applicable to the approach to be taken by an appellate court on an appeal by way of rehearing are well settled. The appellate court must conduct a real review of the hearing before the Tribunal but when doing so bear in mind that they have not had the advantage of hearing and seeing the witnesses. The appellate court must give respect and weight to the Tribunal’s assessment of the witnesses. However, after making proper allowance for the advantage of the Tribunal, if error has been shown they are obliged to say so.
As Gleeson CJ, Gummow and Kirby JJ observed in Fox v Percy:[1]
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. In Warren v Coombes, the majority of this Court reiterated the rule that:
“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.”
As this Court there said, that approach was “not only sound in law, but beneficial in . . . operation”.
[1] (2003) 214 CLR 118.
To the extent that the issues raised by Mr Flowers on the appeal involve issues of law or inferences to be drawn from uncontested or established facts, this Court is in as good a position as was the Tribunal to determine such issues. However, most of Mr Flowers’ complaints involve a challenge to the Tribunal’s findings of fact. On reviewing those disputed findings, I must give weight and respect to the advantage of the Tribunal in seeing and hearing the witnesses.
In this matter, the Tribunal heard evidence and submissions over 15 days. Mr Flowers and Mr Finlayson were the main witnesses. The Tribunal had a distinct and obvious advantage, as compared with this Court, when forming its view about the truthfulness and reliability of their respective accounts.
To understand the appeal grounds, and indeed to understand the hearing before the Tribunal, it is necessary to set out the background of the disputed matters.
History of the Family Court litigation
Mr Flowers and his wife (now ex-wife) became involved in bitter and protracted litigation in the Family Court. Mr Flowers, when giving evidence before the Tribunal stated that at the time he first consulted Mr Finlayson in May 2014, he just “wanted to get his house back”. To put that comment in context it is necessary to understand, albeit in summary form, the history of the Family Court proceedings. The history is set out in some detail in Mr Flowers’ Tribunal trial affidavit tendered as part of his evidence in chief.[2] Mr Flowers elaborated on matters by giving oral evidence as well.
[2] Exhibit C1.
In June 2007, Mr Flowers’ wife commenced proceedings in the Federal Magistrates Court seeking parenting and property orders. For reasons not explained on appeal, a Federal Magistrate appointed a litigation guardian to act on behalf of Mr Flowers; this was against Mr Flowers’ wishes. The Court made custody and property orders while the litigation guardian was acting. Mr Flowers was, and remains, critical of the performance of the litigation guardian. Final property orders were made in April 2010 but varied in October 2010. Mr Flowers successfully appealed the order that a litigation guardian be appointed. Precisely what orders the appellate court made in relation to the property matters is unclear. In November 2012, Mr Flowers’ wife made an application to sell the matrimonial home. Cronin J, on 23 January 2013, ordered a duplicate certificate of title be issued in the name of Mr Flowers’ wife only and ordered the house be sold. The property trial was scheduled to be heard by Cronin J on 1 July 2013. Cronin J ordered that trial affidavits be filed. On 20 May 2013, the solicitor for the wife, Ms H, prepared and filed trial books and affidavits.
Mr Flowers had trouble obtaining legal representation. At the hearing on 1 July 2013 Mr Flowers applied for an adjournment. Cronin J refused the application and accordingly the hearing on 1 July 2013 became undefended. Cronin J made various orders which Mr Flowers successfully appealed. On 15 May 2014, the property orders made by Cronin J were set aside and a new trial ordered. However, by this time the matrimonial home had already been sold. A new trial on the question of the division of the matrimonial assets, including the funds from the sale of the house, was ordered. The new trial was to commence on 15 September 2014. It was against this background that Mr Flowers initially contacted Mr Finlayson in May 2014.
Also relevant to the background of this matter is that in early 2013, Mr Flowers lodged complaints with the Legal Practitioners Conduct Board against the solicitor, Ms H, who was acting for his wife. Mr Flowers alleged that Ms H had knowingly authored untrue affidavits on behalf of his wife and allowed them to be filed in court. He also alleged that Ms H had concealed $15,000 in her trust account and had failed to disclose those funds in his wife’s financial statement. Mr Flowers alleged that Ms H had behaved deceitfully and fraudulently.
Initial contact with Mr Finlayson
It was common ground that Mr Flowers contacted Mr Finlayson around 21 May 2014. A conference was arranged for 23 May 2014. At this stage, Mr Flowers was seeking legal representation and, to that end, he had contacted various solicitors including Mr Finlayson. It was not disputed that Mr Flowers and Mr Finlayson conferred on 23 May 2014 and discussed various issues. At that time, Mr Flowers decided to engage another solicitor. Mr Finlayson sent Mr Flowers an invoice for the conference held on 23 May 2014. While the account was paid, the account and payment form an important part of the background of the complaint laid against Mr Finlayson.
Mr Finlayson is retained
From June 2014 until late August 2014, Mr Flowers retained Mr Wabnitz to represent him in the Family Court proceedings before Benjamin J. On 24 June 2014, the trial was listed for hearing for five days commencing on 15 September 2014. Benjamin J made various pre-trial orders and adjourned other applications. Mr Flowers made an application for further “discovery” and this matter came before Registrar Paxton on 12 August 2014; further orders were made. The orders included granting leave to Mr Flowers to subpoena the Commonwealth Bank to obtain his wife’s financial records for September 2007 through to January 2009. Registrar Paxton granted an extension of time for both parties to comply with paragraph 8 of Benjamin J’s order made on 24 June 2014.
Mr Flowers, in mid to late August, terminated the services of Mr Wabnitz. Although the precise date was not agreed, Mr Flowers contacted Mr Finlayson in late August 2014 and enquired as to whether he was available to conduct the trial in the Family Court commencing on 15 September 2014. At a meeting at the offices of Mr Finlayson it was agreed that he would conduct the trial on the instructions of Mr Flowers. It was common ground that Mr Finlayson would charge $15,000 for the five-day hearing that sum to include trial preparation. The precise terms of the Retainer Agreement were the subject of much evidence at the hearing.
The Family Court trial
Mr Finlayson appeared on the instructions of Mr Flowers at the commencement of the trial on 15 September 2014. The matter proceeded but during the lunch adjournment, the lawyer/client relationship broke down and Mr Flowers terminated Mr Finlayson’s instructions. On the resumption of the hearing Mr Finlayson sought leave of the trial judge to withdraw from the case; leave was granted. Mr Flowers then represented himself for the remainder of the trial.
The Complaint before the Tribunal
The complaint filed by Mr Flowers related to the conduct of Mr Finlayson between late August 2014, when he was retained for the trial, to the end of September 2014. The complaint was later amended to include further allegations of unprofessional conduct occurring after September 2014. The amended complaint, on which the Tribunal hearing proceeded, contained 7 charges against Mr Finlayson.
Generally, the charges alleged that Mr Finlayson, having agreed to specific terms regarding his retainer, breached those terms and charged Mr Flowers above the agreed figure. The charges also contained allegations of incompetence in his representation of Mr Flowers, allegations of failing to comply with trust account regulations, allegations of misleading conduct and allegations of dishonesty in dealing with Mr Flowers, the Commissioner and the Tribunal. Sitting behind most, if not all of the charges, was the allegation that Mr Finlayson acted dishonestly.
Following a 15 day hearing the Tribunal found Mr Finlayson not guilty of all charges. Mr Flowers appeals those findings to this Court.
The Notice of Appeal (as amended) contains 7 grounds of appeal. Not all of the grounds are easy to understand. Trying to summarise the grounds is difficult but generally they allege:
1.That the constitution of the Tribunal, and the manner in which it was selected, breached the Public Sector Honesty and Accountability Act 1995 and accordingly the members of the Tribunal were invalidly appointed and the decisions reached are void;
2.That the Tribunal failed to afford Mr Flowers procedural fairness;
3.That the Tribunal erred in failing to find that Mr Finlayson had acted dishonestly in his dealings with Mr Flowers, the Commissioner and the Tribunal and further in failing to find that Mr Flowers did not keep proper trust account records;
4.That the Tribunal erred in its adverse finding of the credibility of Mr Flowers;
5.That the Tribunal erred in reaching those conclusions in particular in reaching its conclusion as to the terms of the costs retainer.
Mr Flowers’ involvement in litigation
To understand what occurred at the Tribunal hearing, and therefore the grounds of appeal before this Court, consideration must be given to Mr Flowers’ involvement in previous litigation, and the participants in that litigation, as it informs his approach to these matters.
In his Tribunal trial affidavit dated 15 June 2017[3] Mr Flowers deposed to the following matters:
[3] Exhibit C1.
·While in the United States of America and involved in civil litigation against several financial institutions, a US Army JAG lawyer, Captain John Ohlweiler, knowingly issued false and unauthorised subpoenas to financial institution (sic) to produce financial records. This behaviour violated 12 United States Code s3401 et seq, the Right to Financial Privacy Act;
·On 16 January 2013 and 6 March 2013 Mr Flowers lodged complaints against his wife’s solicitor, Ms H, alleging that she had knowingly authored and caused his ex-wife to file “untrue affidavits” and further she violated professional ethics and engaged in professional misconduct when concealing rather than revealing monies ($15,000) secured in her trust account by failing to disclose the funds in his wife’s financial statement;
·That Ms H had initiated “deceitful and fraudulent tactics” that led to the sale of his house and that the sale was “malicious and absent authority from the court”;
·The process for full and frank disclosure and discovery required of the parties was “consistently prejudicial and discriminatory” and the rules were applied differently to his wife’s solicitor than to him;
·That:
Since the litigation began in the Federal Magistrate Court and transferred to the Family Court, both with legal representation and self-representation there existed a prejudicial pattern of access to full and frank disclosure with use of a litigation guardian and legal representation willing to compromise professional obligations absent accountability and to deny procedural fairness.
Their Honours who presided over the case were provided evidence that (his ex-wife’s solicitor) concealed substantial sums of undisclosed monies in her trust account and, in this case, turned a blind eye discovery through appointment of a litigation guardian. And prejudicial Reasons for judgments unsupported by trial court records.
(The litigation guardian) violated professional principles expected of lawyers through disregard of Ms H’s fraudulent behaviour; the liability and danger of these proceedings were not only legal practitioners compromised of professional conduct and ethics but being a Black person in the Family Court in Adelaide where the barometer of truth weighed less or more favourably for persons on non-colour.
·Mr Flowers discussed with Mr Finlayson he had been “unable to obtain full and frank disclosure and that the Family Court process had been prejudicial, discriminatory, and the Court primarily placed its budget more important that the administration of justice”;
·“on or about 25 August 2014 Mr Wabnitz”, (his previous solicitor), “put together a trial affidavit that he knew was improperly prepared and inadequate for trial purposes but seemingly made to justify expenses and withdrawal of funds from the trust account before he ceased to act on or about 26 August 2014”;
·That he repeatedly informed Mr Finlayson that Ms H “did commit various acts of fraud and the appropriate cost (sic) must justify any cost order pursuant to s 117(2) of the Family Law Act of 1975”. He said that he “raised the question with Mr Finlayson of how can court allow Ms H to conceal monies in violation of disclosure-a discriminatory nondisclosure that consistently deprived me of procedural fairness?”
Family Court Trial
After terminating Mr Finlayson’s instructions Mr Flowers conducted the trial before Benjamin J in person. Benjamin J delivered his judgment on 10 February 2015. Mr Flowers appealed this decision and represented himself before the Full Court of the Family Court. The Full Court delivered judgment on 9 August 2016.[4] The judgment was handed down before the Tribunal heard the complaint against Mr Finlayson. It is important to understand the approach Mr Flowers adopted in his appeal to the Full Court.
[4] Exhibit P1 page 430 ff.
The grounds of appeal lodged and argued by Mr Flowers before the Full Court covered many topics. Of relevance to this appeal is that some of the matters argued before the Tribunal had been argued before the Full Court and dismissed. The findings of the Full Court of the Family Court could not be, and were not, used by the Tribunal when reaching its conclusions. Neither can this Court use the findings of the Full Court of the Family Court when deciding the grounds of appeal before us. However, the fact that the issues have been raised in a different jurisdiction, and decided comprehensively against Mr Flowers, has relevance as it informed the way Mr Flowers approached the matters before the Tribunal. I refer below to only a few of the matters raised before the Full Court.
Mr Flowers argued before the Full Court that he had not been served with “trial folders”. This was an allegation he also made before the Tribunal. At the trial before Benjamin J, Ms H gave evidence on that topic, swearing on oath that she had delivered the folders to Mr Flowers prior to May 2013. Not only had she served the wife’s documents on Mr Flowers, upon receiving Mr Flowers’ documents, which were disorganised, Ms H put them into logical order, placed them in folders, then filed an affidavit annexing those documents. Mr Flowers denied receiving the documents. Benjamin J preferred the evidence of Ms H. Benjamin J also made a finding that he observed Mr Flowers, from time to time, referring to and looking at the very bundles which he, at other times, denied having in his possession.[5] The Full Court dismissed that ground of appeal.
[5] Exhibit P1 page 461.
Mr Flowers alleged that Benjamin J was “biased”. Further Mr Flowers submitted that there was a “coordinated effort within the Family Court and other entities to deny procedural fairness and natural justice”. That ground of appeal was dismissed.
Mr Flowers also submitted to the Full Court that Benjamin J’s reasons were in fact drafted by the wife’s solicitor/counsel (Ms H). The Full Court considered that this suggestion provided the basis for many of his complaints about the judge’s findings. The Full Court referred to this as a “bizarre suggestion” and dismissed the submission.
Mr Flowers repeated this suggestion before the Tribunal, in his affidavit affirmed on 25 September 2015.[6] He stated:
Further I informed the LPCC that Ms H and/or her counsel wrote the Reasons for Judgment delivered by Judge Benjamin on 10 February 2015. After which the state library removed all relevant newspapers from the shelves until I was able to locate the Hobart Family Court newspaper that show (sic) there was no Family Court judgment delivered on that date.
…Since Ms S (LPCC) delayed publishing the complaint to Ms H and forestalled any investigation pending the Reason (sic) for Judgment, Ms H provided just what was required in the Reason for Judgment, that which distracted from the truth that concealment of $15,000 is condoned and during the complaint process members of the legal profession are protected through the new rules or amendment to the Legal Practitioners Act of 1981…
[6] Exhibit C5 pages 7–15.
It remains unclear whether Mr Flowers was alleging that the State library was, in some way, complicit it the conduct of Benjamin J and Ms H. It appears that Mr Flowers further alleges that a solicitor employed by the Commissioner (Ms S) deliberately refrained from investigating the complaint against Ms H, so that Ms H could provide just “what was required” for Benjamin J’s judgment, a judgment that eventually cleared Ms H of any wrongdoing. Further, in this affidavit Mr Flowers states that Ms B, also a solicitor employed by the Commissioner, conspired with Mr Finlayson to “deprive me of procedural fairness” as he had been when he complained about Ms H.
The conspiracy
It is clear from his own statements set out above that Mr Flowers considers he is the victim of a conspiracy. He alleges that some Judges of the Family Court, legal practitioners, employees of the Commissioner’s office and others have conspired, and continue to conspire, to thwart his rightful claims in the Family Court. The history of his involvement in the Family Court proceedings shows that he has endured some set-backs but these have been, largely although not entirely, corrected on appeal. The transcript of the proceedings before the Tribunal demonstrates that his belief in the conspiracy coloured and framed his approach before the Tribunal. As Benjamin J observed in the Family Court proceedings Mr Flowers genuinely and sincerely believes he is the victim of a conspiracy. It is clear from the transcript of proceedings before the Tribunal that he holds this core belief very strongly. To Mr Flowers it is a compelling narrative. However, the confidence he has in his belief is not a measure of the quality of evidence allegedly supporting the belief. As will be developed later in these reasons, when presented with evidence that contradicted his position, Mr Flowers was simply unable to accept the evidence, or even to allow for the possibility that he might be wrong in his belief. When confronted with evidence that challenged his belief he reframed the evidence rather than question his belief. His explanation was that it was all part of the ever-widening conspiracy. Indeed, any evidence that contradicted the comfortable narrative that he had developed was simply wrong or more likely fraudulent. Ignoring contradictory evidence, or by labelling it as fraudulent, enabled him to maintain his belief that he is correct. Such an approach fitted the narrative that he has constructed. For Mr Flowers, the barbarians were always mustering outside the gates.
Further, there was an ever-multiplying fund of fresh participants joining the conspiracy. Of course, to Mr Flowers, the conspiracy explained all the contradictory evidence.
During the proceedings, Mr Flowers often questioned Mr Finlayson on the assumption that if he, Mr Flowers, had said something on oath (or affirmation), that made it objectively true. Many topics were approached on the basis that “I have said that happened on oath, why would I do that if it was not true”. The Tribunal members attempted to prevent that type of question (rather than a submission) with only limited success. To Mr Flowers, if he made an accusation, the accusation proved its truth. However, no amount of belief, however genuinely held, makes something a fact. During these reasons, I will refer to some, but not all, examples that demonstrate the approach of Mr Flowers.
The Charges
Mr Flowers filed an initial statement of complaint in the Tribunal on 9 December 2015 and then, on 15 June 2017, filed an Amended Statement of Ground of Complaint further particularising the charges.[7] Mr Finlayson, through his counsel Mr Hoile, objected to the further particulars, but emphasised that Mr Finlayson wished to cooperate with the Tribunal and have all matters Mr Flowers wished to agitate dealt with at the one hearing. The Tribunal heard argument about the “particulars” and made various rulings. The Tribunal then took great care to ensure, with the assistance of Mr Hoile, that as Mr Flowers was unrepresented, the charges, and importantly, the particulars of those charges, represented the matters Mr Flowers wished to pursue.[8] From the discussions and submissions it was agreed by Mr Flowers and Mr Hoile, that Mr Finlayson face 7 charges, as particularised, and the hearing was conducted on that basis.
[7] The amended complaint is set out in the Tribunal’s Reasons for Decision, Appeal Book 206 ff.
[8] T105–114.
The Tribunal Hearing
The Tribunal, in its Reasons for Decision, considered the legal definitions of unsatisfactory conduct and unprofessional conduct and noted, that when carrying out its functions, the importance of protecting the public and ensuring that professional standards are maintained. In determining the charges, the Tribunal, appropriately, applied the standard of proof as stated in Briginshaw v Briginshaw.[9]
[9] (1938) 60 CLR 336 at 361–362 (Dixon J).
The Tribunal stated that “credibility was the central issue in determining the outcome of the charges”. The Tribunal considered there was grave difficulty with Mr Flowers’ demeanour and that his account was implausible and lacked credibility. It further stated that, when approaching its decision on the charges, it treated Mr Flowers’ evidence “with great caution” and placed little or no weight on his evidence where it conflicted with the evidence of Mr Finlayson. The Tribunal set out its reasons for making those findings and I will deal with those reasons when considering the evidence in relation to each of the charges.
Charge 1: The practitioner misrepresented his length of time in practice.
Mr Finlayson was admitted to practice in New South Wales on 9 July 2009 and received his Graduate Diploma in Legal Practice (with Merit) on 13 August 2010. His Admission and Practising certificates, which confirmed his date of admission, were framed by Mr Finlayson, and hanging in his office on the wall opposite his desk.
As previously mentioned Mr Flowers originally contacted Mr Finlayson in May 2014. On 23 May 2014, he met with Mr Finlayson to discuss whether he would retain Mr Finlayson for the trial in September. Around this time, Mr Flowers met with a number of lawyers for the same purpose. It was at the conference on 23 May 2014 that Mr Finlayson, in response to a question from Mr Flowers about his experience, allegedly said that he had “over 15 years as a solicitor in family and property law”. In evidence Mr Finlayson denied the allegation. He pointed to the fact that his framed qualifications were hanging on the wall opposite his desk. He accepted that he told Mr Flowers of his personal appearances, including appeals, in the Family Court before he became a lawyer.
There were no other witnesses to the conversation. The Tribunal decided this based on its credibility findings. I deal, in some detail, during my consideration of Charge 2, with the question of credibility. The Tribunal found Mr Flowers to be a poor, and not credible, witness and rejected Mr Flowers’ evidence. The Tribunal accepted the evidence of Mr Finlayson. While it was not suggested that Mr Flowers looked at the certificates that were hanging on the wall, the Tribunal also relied on the improbability of Mr Finlayson making a statement which could be so readily disproved.
The Tribunal found this charge was not proved.
Charge 2: The practitioner agreed to cap his fees for pre-trial work at $5,000.
Charge 2 related to the terms of the arrangement made in late August/early September 2014. There is considerable overlap between this charge and other, later, charges. It is convenient to deal with the evidence related to the oral agreement along with the evidence relating to the written Retainer Agreement about which there was much evidence. The Tribunal relied on this evidence (along with other evidence) when making its assessment of the credibility of Mr Flowers and Mr Finlayson.
As discussed, the initial contact between Mr Flowers and Mr Finlayson occurred in May 2014 when Mr Flowers arranged to confer with Mr Finlayson about retaining him for the upcoming Family Court trial in September. Mr Finlayson stated that, having received a request to confer, he sent Mr Flowers, by email, confirmation of the conference time along with a letter, dated 21 May 2014, (including the Retainer Agreement) attached to the email enclosing “my standard terms of retainer”. Whether the email attaching the letter and Retainer Agreement was sent or received by Mr Flowers was a contested issue before the Tribunal.
Mr Flowers and Mr Finlayson conferred on 23 May 2014. Charge 1 arose out of a discussion that occurred during that conference. Before turning to Charge 2 and how the Tribunal dealt with it, it is necessary to describe subsequent events. Mr Flowers did not, at that time (namely May 2014), retain Mr Finlayson; he retained Mr Wabnitz. Eventually that solicitor/client relationship ended and Mr Flowers engaged Mr Finlayson in approximately late August or early September 2014. However, what occurred between those times is of importance.
After the conference on 23 May 2014, Mr Finlayson sent a tax invoice for the time spent and advice given. The tax invoice, in the sum of $932.88, was sent, by email to Mr Flowers, on 22 June 2014. What followed was a chain of email correspondence between Mr Flowers and Mr Finlayson. Mr Flowers responded on 23 June 2014 acknowledging receipt of the tax invoice but stating that he thought the “first consultation was free”. Mr Finlayson responded on 24 June 2014 by reminding him that “my terms and conditions of acting including fees were sent to you by email on 21 May 2014”. This was clearly a reference to the letter sent by email mentioned earlier. Mr Flowers did not, at the time, dispute Mr Finlayson’s assertion that the terms and conditions of acting had been sent earlier. Mr Flowers responded on 24 June 2014 apologising and stated that he would provide payment as soon as practical.[10] It was common ground that Mr Flowers attended the office of Mr Finlayson and paid $930 which Mr Finlayson accepted in satisfaction of the invoice.
[10] Exhibit P1 pages 22–23.
This rather apparently unremarkable chain of emails established several matters. First, that Mr Finlayson not only sent the letter of 21 May 2014 with the Retainer Agreement to Mr Flowers but also reminded him of that fact in the email of 24 June 2014. Secondly, Mr Flowers received the tax invoice by email on 23 June 2014, could open it, and then query it before finally paying it. During his evidence Mr Flowers denied receiving any of the emails or the letter and Retainer Agreement. These emails and attachments starkly contradicted his evidence. Without producing any proof, Mr Flowers disputed the authenticity of the emails. That is, despite his email address being located on the email chain, and that he admitted paying the invoice (which would strongly suggest he received it) Mr Flowers maintained he did not receive the email (with attachments). Indeed, in submissions Mr Flowers alleged that Mr Finlayson had “made up” the emails at a later time to bolster his defence to the original complaint.
The email dated 23 May 2014 with the attached letter and Retainer Agreement featured prominently in the Tribunal’s reasons for not accepting Mr Flowers’ evidence and I will return to this topic later in these reasons.
It was common ground that, in late August/early September 2014, Mr Flowers attended Mr Finlayson’s office and retained his services for the trial beginning on 15 September 2014. However, the terms of the retainer are disputed.
Mr Flowers alleged that, when engaging Mr Finlayson to conduct his trial, Mr Finlayson said that he would charge “$5,000 for the pre-trial prep and $1,500 a day for the trial but put $15,000 into my account”.[11] That is, Mr Flowers alleged that Mr Finlayson agreed to cap his pre-trial preparation charges at $5,000. Mr Flowers, prior to trial, paid $15,000 into Mr Finlayson’s trust account. He terminated Mr Finlayson’s services on the first day of trial. Mr Flowers later wrote to Mr Finlayson requesting the balance of $10,000 be returned.
[11] T328, T164, T175–176, T177, T182.
Mr Finlayson stated that he agreed to conduct the 5-day trial for $15,000 and that sum was to include pre-trial work. Mr Finlayson denied his fees were “capped” at $5,000 for pre-trial work and billed Mr Flowers for the work he did pre-trial. Mr Finlayson said he told Mr Flowers that he would be wanting to raise some invoices for his preparation work immediately and frequently before trial but only up to $5,000 before trial and that the balance of the money he would leave in the trust account until after the trial.[12] That is there was an arrangement not to render invoices for more than $5,000 prior to trial but no arrangement to cap his pre-trial work at $5,000.
[12] T328.
Mr Flowers alleged that Mr Finlayson did not send him invoices for work done and that the invoices were prepared only after he, Mr Flowers, made a complaint to the Commissioner. Mr Flowers alleged that much of Mr Finlayson’s evidence was false and deliberately constructed with false invoices and emails to present a defence to the Commissioner. That said, Mr Flowers accepted that pre-trial, he did authorise Mr Finlayson to withdraw money from the trust account, without receiving an invoice, in payment for work done, but claimed his authorisation was limited to the cap of $5,000. Mr Flowers denied the version of the conversation put forward by Mr Finlayson and said that there was “no doubt” in his mind that his version of the conversation was the correct one. He maintained that position even when the Tribunal pointed out to him that on his version of events he only needed to place $12,500 in Mr Finlayson’s trust account not $15,000.
As mentioned earlier, a major issue at trial was whether Mr Flowers ever received the letter enclosing the terms of the retainer. I have already considered the chain of emails and the fact that they contradicted Mr Flowers’ assertions. However, the issue of the Retainer Agreement was taken further in Mr Flowers’ cross examination by Mr Hoile.
The letter dated 21 May 2014 from Mr Finlayson to Mr Flowers was allegedly sent as an attachment to an email (dated 23 May 2014). The letter contained a copy of the Retainer Agreement. Mr Flowers’ position was that the letter and, by implication, the Retainer Agreement were not sent and that he did not get a copy of either until they were sent to him by the Commissioner. That is Mr Finlayson never supplied him with a copy of the Retainer Agreement.
Mr Hoile cross examined Mr Flowers about a document Mr Flowers attached to the Complaint (containing the charges) filed with the Tribunal. It must be remembered that Mr Flowers made an initial written complaint to the Commissioner. This was published to Mr Finlayson who responded in writing and enclosed various documents. The Commissioner considered the matter and dismissed the written complaint. It was then that Mr Flowers filed, in the Tribunal, a Complaint containing a number of charges alleging unprofessional conduct against Mr Finlayson. Mr Hoile established the following matters:
1.Mr Flowers subpoenaed, for the Tribunal hearing, the Commissioner’s documents; these were produced;
2.Mr Flowers prepared the Complaint (containing the charges) and annexures;
3.The documents produced under subpoena included the letter sent to Mr Finlayson by the Commissioner which enclosed a copy of the initial written complaint of Mr Flowers (not containing the charges);
4.Mr Finlayson’s written response, to the written complaint made by Mr Flowers, was by letter dated 11 December 2014, addressed to the Commissioner. It contained photocopies of documents which were black and white. The fact that the photocopies were black and white, not colour, was an important fact;
5.Included in the documents sent by Mr Finlayson was a copy of the email dated the 21 May 2014 that Mr Finlayson sent to Mr Flowers. Attached to the email was the Retainer Agreement. As mentioned Mr Flowers denied receiving the email and Retainer Agreement in May 2014;[13]
6.That the photocopy of the letter dated 21 May 2014 sent by Mr Finlayson to the Commissioner was unsigned; it was also a black and white photocopy.
[13] T473.
Having established those matters Mr Hoile then produced the original Complaint (containing the charges before the Tribunal)[14] filed by Mr Flowers on 9 December 2015. Paragraph 15 of the Complaint alleges that not only did Mr Finlayson fail to send him a Retainer Agreement but that he, Mr Finlayson, had provided the Commissioner with a copy and (falsely) claimed to have sent it to Mr Flowers on 21 May 2014. Mr Flowers, attached a copy of the letter and Retainer Agreement as annexure two of the Complaint.
[14] Exhibit P3.
During cross examination Mr Hoile pointed out to Mr Flowers that the copy of the letter he, Mr Flowers, annexed to the original Complaint had a coloured (not black and white) letterhead and the letter was signed by Mr Finlayson. That is on its face it appeared to be an original document, not a copy. He questioned Mr Flowers as to how he came to be in possession of a signed and coloured copy of a letter and Retainer Agreement, documents he claimed he had never received. The point of the question was that the Commissioner could only ever have sent Mr Flowers a black and white copy of an unsigned letter and agreement as that is all they had, from Mr Finlayson, in their possession.
Mr Flowers was unable to give any sensible explanation as to how he came into possession of the signed letter (with coloured letterhead) dated 21 May 2014. Eventually Mr Flowers stated that he did not want to answer the question and preferred to wait until Mr Finlayson gave evidence as it was a “question of dishonesty”.[15] The Tribunal advised and warned Mr Flowers that he needed to give his evidence at that time. He was advised that any questions he may ask of Mr Finlayson were not evidence but the answers would be. However, Mr Flowers refused to give his evidence on this point. He later suggested, in his evidence, that Mr Finlayson may have given him the letter after 19 September 2014.[16] Mr Flowers continued to deny that Mr Finlayson had sent him the letter of 21 May 2014 and the Retainer Agreement by email on 23 May 2014, or at all, before the trial commenced on 15 September 2014.
[15] T484.
[16] T486.
Mr Flowers was given a further opportunity to explain how he came into possession of the document. He claimed that the document was irrelevant as he had not signed it. That, of course, was not an answer to the question of how he came to possess it.
Mr Flowers, towards the end of Mr Finlayson’s evidence, was permitted to give further evidence on this issue. When recalled, Mr Flowers asserted that a document, which eventually became Exhibit C18, was part of Exhibit P3 when he inspected the file, in the Registry, on 14 November 2017. Mr Flowers asserted that when he inspected Exhibit P3 he found that a page had been stapled to it. He took a photo of this page.[17] When the Chairperson pointed out to Mr Flowers that the photograph Exhibit C18 did not appear to show any marking consistent with staples having been used Mr Flowers became extremely defensive.
[17] Exhibit C18.
While the point being made by Mr Flowers about the stapled document was not entirely clear it appears that Mr Flowers was suggesting that Exhibit P3 had been accessed and in some way changed. It could not have been changed by him so it had to be by Mr Finlayson. As such, he submitted, the Tribunal could not rely on the integrity of the document and in particular the location of the signed letter (with the coloured letterhead) on the file.[18]
[18] T958–970, T973–977.
On this issue, the Tribunal made the following findings:
23. Of concern to the tribunal was the evidence in respect of the summons which the complainant served upon the practitioner-P3-which contained within it the costs agreement which the complainant said in evidence that he never received. The evidence of the practitioner was that he gave the costs agreement-the original with original signature-to the complainant at their meeting on 23 May 2014. It was a large part of the complainant’s case on costs that he never received the costs agreement but the fact that it was contained in the summons which he served upon the practitioner, left a large hole in his case and his reliability and credit as to the relevant transactions, discussions and correspondence between himself and the practitioner.
24. Of greater concern to the Tribunal is that in realising the problem the summons created for him, the complainant gave evidence that when he went to view the exhibit, he found a page that had been stapled to it “somebody had took it off and stapled it together”. The complainant’s clear evidence was that the page was stapled to the summons. A copy of a photograph of that page taken by the complainant was identified as MFI C18.
25. Inspection of the photograph of that document revealed that there were no staple holes at the top of the document, which either meant that the photograph was defective or the page had never been attached to the exhibit is attested to by the complainant. When questioned about that issue to see if he could comment on the absence of staple holes (or more correctly the absence of them in the photograph of the page) the complainant became defensive and suggested the Tribunal was calling him a liar.
26. The reaction was defensive and accusatory and in response to evidence which the complainant called (by resuming the witness box) to - in the Tribunal’s view - attempt to discredit a document - the costs agreement - the existence of which in the summons was patently contrary to his sworn evidence that he never received it. Clearly, the complainant must have received the costs agreement for him to then included in the summons served on the practitioner in respect of this matter.
27. The Tribunal finds that the evidence in respect to MFI C18 was an attempt by the complainant to discredit the provenance of P3 and in particular the presence of the costs agreement which he says he never received, and clearly must have received.
The Tribunal’s credit findings, adverse to Mr Flowers, were largely, but not entirely, based on the issue of what was contained in Exhibit P3. Not only were such credit findings available to the Tribunal, they were, in my view, clearly correct. Mr Flowers was unable to give a sensible answer as to how he came to be in possession of the signed letter. That he tried to create some doubt about the integrity of Exhibit P3, by evidence which made little sense, also adversely impacted his credibility. The Tribunal’s finding suggests that Mr Flowers slid from self-deception to deception.
In summary, to account for the evidence that contradicted his case, Mr Flowers alleged that Mr Finlayson falsely constructed invoices, emails, file notes and trust account records to convince the Commissioner that there was no merit in Mr Flowers’ written complaint. Not only did he falsify those documents, Mr Finlayson persuaded the Commonwealth Bank to change its banking records to align with the falsely constructed invoices. That is, the Commonwealth Bank, when providing records under subpoena, did not produce the original (and therefore the contemporaneous) records but only produced the “altered” records. Further, to account for his suggested possession of the original letter and Retainer Agreement, Mr Flowers alleged that someone (and it could only be Mr Finlayson) had accessed the Tribunal records and altered them in some undefined way.
It is unsurprising that the Tribunal rejected Mr Flowers’ evidence, given that he produced no evidence other than his own suspicions to justify the allegations.
Based on the credit findings generally, including the matters related to Exhibit P3, the Tribunal preferred the evidence of Mr Finlayson to that of Mr Flowers in relation to the terms of the Retainer Agreement. Other documentary evidence supported Mr Finlayson’s evidence. The Tribunal, in accepting the evidence of Mr Finlayson, also accepted that the documents that were produced by Mr Finlayson, were genuine and not created at a later time. They were generally consistent with Mr Finlayson’s evidence. Mr Flowers did not produce any evidence to the contrary. The Tribunal found that Mr Finlayson did not agree to “cap” his fees as alleged by Mr Flowers and that he was entitled to invoice the appellant, as he did, for the work done.
The Tribunal dismissed Charge 2.
Charge 3: The practitioner’s representation of the appellant at the trial conducted on 15 September fell below the required standard such that it amounted to unprofessional conduct.
Having retained Mr Finlayson around early September 2014, the appellant complained that Mr Finlayson failed to prepare a proper case outline, failed to prepare trial books and also failed to press for proper discovery from Mr Flowers’ wife. He also complained that Mr Finlayson treated him rudely on the first morning of trial, 15 September 2014.
Leading up to the first day of trial, the appellant spent time with Mr Finlayson in his office on 7 September preparing his trial affidavit. Mr Flowers said that he took to Mr Finlayson’s office, recorded on a USB stick, the trial affidavit that had been prepared by Mr Wabnitz. Mr Flowers said that Mr Finlayson took the USB stick from him and copied that affidavit onto his own computer. He accepted that Mr Finlayson did do some edits to the document.
What Mr Flowers’ specific complaints were in relation to some of these matters was not made clear to the Tribunal. Mr Flowers was unable to articulate, for example, what the precise problem was with the trial books. However, whatever was the problem with the trial books Mr Flowers complained that Mr Finlayson did nothing to rectify it. A similar problem arises in relation to the issue of the outline. Whilst there was a complaint that the outline was inadequate, the appellant gave few details to substantiate that complaint.
Mr Flowers stated that he did not wish to sign his trial affidavit without his wife having made proper discovery. When giving evidence Mr Flowers referred to a letter that he had sent Mr Finlayson on 12 September 2014; the letter set out his concerns. The letter raised concerns about the question of proper and full discovery by the Mr Flowers’ wife; he clearly considered that his wife had not made proper discovery. Mr Flowers also stated in evidence that when Mr Finlayson appeared for him on the first day of trial he had few documents with him.
It is difficult to follow Mr Flowers’ complaints about the discovery issue. He had been maintaining for many months, if not years, that his former wife’s lawyer had misappropriated or misapplied in some way a sum of $15,000. There had been before Mr Finlayson was retained, numerous attendances before judicial officers where the question of discovery was agitated. Apparently, however, not to the satisfaction of Mr Flowers. He did not make clear to the Tribunal what steps he expected Mr Finlayson to take particularly given the fact that the trial was about to commence.
Another issue that Mr Flowers pursued with his customary zeal related to the preparation of trial books. Again, Mr Flowers’ evidence in this regard is hard to understand. It appears that trial books had been prepared for an earlier trial. To save costs the books were to be updated rather than totally recreated. Exactly what Mr Flowers considered Mr Finlayson’s obligations to be on the question of the trial books was never made clear. Indeed, in his affidavit he stated:
Each time I obtained legal representation from 1st of July 2013 until 15 September 2014, the trial books filed by Ms H on May 20, 2013 became mysteriously missing and upon absent (sic) of legal representatives trial books filed on 20 May 2013 appeared.[19]
[19] Exhibit C1 at [78].
This statement was not explained by Mr Flowers when giving his evidence in chief. It remained unclear if he was alleging that Mr Finlayson was somehow involved with the “missing” trial books.
Mr Flowers gave evidence that Mr Finlayson was rude and dismissive towards him on the first day of trial.
In his evidence, Mr Finlayson accepted that Mr Flowers wanted information about his now ex-wife’s partner but he considered that, pre-trial, he was unable to push that position any further. He advised Mr Flowers that the discovery issues could be pursued during cross examination of his ex-wife.[20] On 12 September 2014 they discussed the case outline Mr Finlayson had prepared.[21]
[20] T734.
[21] T736.
On the day of trial, 15 September 2014, Mr Finlayson did not take many documents with him to Court. He stated that he had discussed his strategy with Mr Flowers about taking various objections to the wife’s affidavit[22]. Mr Finlayson accepted that, consistent with his trial strategy, he did not take many documents to court. The transcript of the Family Court trial, or at least part of it, demonstrated that he was successful in having parts of the affidavit struck out. This transcript was consistent with Mr Finlayson’s evidence before the Tribunal.
[22] T748.
It was during the morning break that he and Mr Flowers had “words”. Mr Finlayson denied being rude to Mr Flowers and indeed suggested that it was Mr Flowers who was belligerent. Mr Finlayson had his instructions terminated. After lunch, Mr Finlayson advised Benjamin J of what had occurred and he was given leave to withdraw from the file.
The Tribunal considered the allegation of incompetence had to be viewed against the background of the timeline in which Mr Finlayson was asked to act. The Tribunal found that Mr Finlayson dealt properly with the discovery issues, that it was reasonable for him to rely on the trial affidavit prepared by Mr Wabnitz and that it was reasonable for Mr Finlayson to rely on the trial books that were already in existence. The Tribunal considered that Mr Finlayson’s conduct was appropriate and that there was nothing which “indicates that the conduct of the practitioner involved a substantial or recurrent failure to meet the standard of conduct observed by competent legal practitioners of good repute”. The Tribunal preferred the evidence of Mr Finlayson in relation to whether he was rude to Mr Flowers.
The Tribunal found this charge was not proved.
Charge 4: The practitioner made a false and dishonest statement in an affidavit dated 12 April 2017.
Charge 4 relates to the dispute over the terms of the retainer (see Charge 2). Mr Finlayson, in his affidavit of 12 April 2017 stated his version of the terms of the Retainer Agreement. Mr Flowers alleges that in doing so he was “dishonest” in his affidavit and therefore acted dishonestly before the Tribunal.
This charge is simply an extension of Charge 2. If the Tribunal accepted Mr Finlayson’s evidence about the terms of the agreement then it must follow that his affidavit was not false nor dishonest. The Tribunal accepted the evidence of Mr Finlayson as discussed. The Tribunal found this charge not proved.
Charge 5: The practitioner was dishonest when charging a fee of $932 for an initial consultation and failed to provide required cost disclosure during the initial consultation on 23 May 2014.
Mr Flowers alleged that Mr Finlayson, as discussed earlier, did not provide him with the Retainer Agreement. It was further alleged that Mr Finlayson was dishonest when charging for the initial consultation.
The Tribunal had already dealt with the issue of the Retainer Agreement. It did not accept Mr Flowers’ evidence about that topic. Nor did it accept Mr Flowers’ evidence that he did not receive the emails sent by Mr Finlayson. While Mr Flowers disputed the authenticity of the emails he failed to produce evidence to substantiate that allegation.
The Tribunal found charge 5 not proved.
Charge 6: The practitioner overcharged Mr Flowers and mishandled trust monies.
Again, this charge overlapped substantially with Charge 2. Mr Flowers alleged that Mr Finlayson agreed to cap his charges at $5,000. He alleged that he did not authorise some of the amounts transferred from trust by Mr Finlayson and further alleged that the “invoices” sent by Mr Finlayson were fraudulent. Mr Finlayson’s trust account records matched the invoices. Of course, if the invoices were false or fraudulent then any trust account records dealing with those invoices would also be fraudulent and dishonest.
Mr Finlayson denied the allegations and relied upon emails that were sent to Mr Flowers, notes he made of some conversations he had with Mr Flowers and the timing of some of the invoices to support his evidence.
Relying on the credibility findings the Tribunal accepted the evidence of Mr Finlayson about these matters. That is, they accepted Mr Finlayson’s account of the fee arrangement and his account of the conversations he had with Mr Flowers authorising the transfer of trust monies. The Tribunal rejected Mr Flowers’ allegations that Mr Finlayson had falsified invoices. Mr Finlayon’s evidence also matched his trust account records. Mr Flowers alleged that the trust account records had been changed and manipulated by Mr Finlayson after Mr Flowers had initially reported the matter to the Commissioner. The Tribunal rejected his evidence and allegations on that issue.
Having accepted Mr Finlayson’s evidence about the various transactions it followed that he had not acted dishonestly nor had he mishandled any trust monies.
Accordingly, the Tribunal found Charge 6 not proved.
Charge 7: The practitioner witnessed an affidavit of Mr Flowers on 7 September 2014 but falsely said he had witnessed it on 8 September 2014.
It was common ground that Mr Finlayson witnessed the signature of Mr Flowers on an affidavit to be used in the Family Court proceedings. Mr Flowers said he signed it on 7 September 2014. Mr Finlayson stated that Mr Flowers signed it on 8 September, 2014 and he, Mr Finlayson, witnessed it on that day. There was no other evidence before the Tribunal on this topic. It was quintessentially and oath against oath case.
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.
On appeal, Mr Flowers maintained his argument that the appointment of the members of the Tribunal was “null and void”.
On appeal, it was common ground that Ms Pyke decided that she could not sit on the Tribunal due to an undisclosed conflict of interest. The conflict of interest related to previous dealings with Mr Finlayson. It was also common ground that Ms Pyke, after disclosing that she had a “conflict”, then nominated or appointed the members of the Tribunal. The issue on appeal was whether the PSHA Act applied to Ms Pyke.
Section 17 of the PSHA Act provides:-
Duty of senior officials with respect to conflict of interest
(1)A senior official must—
(a) on appointment as a senior official, disclose his or her pecuniary interests to the relevant Minister in writing in accordance with the regulations; and
(b) on acquiring any further pecuniary interest of a kind specified in the regulations, disclose the pecuniary interest to the relevant Minister in writing in accordance with the regulations; and
(c) if a pecuniary interest (whether or not required to be disclosed under paragraph (a) or (b)) or other personal interest of the senior official conflicts or may conflict with his or her duties—
(i)disclose in writing to the relevant Minister the nature of the interest and the conflict or potential conflict; and
(ii)not take action or further action in relation to the matter except as authorised in writing by the relevant Minister.
Penalty: Division 4 fine.
Section 17 requires a “senior official” to disclose his or her pecuniary interests to the “relevant minister”. A “senior official” is defined in s 2 of the PSHA Act as:-
senior official means—
(a)the Commissioner for Public Sector Employment; or
(c)the chief executive of an administrative unit; or
(d)a statutory office holder with the powers and functions of a chief executive of an administrative unit; or
(e)a chief executive (or acting chief executive) of a public sector agency other than an administrative unit; or
(f)a person declared by another Act or under subsection (2) to be a senior official;
The phrase “administrative unit” is defined in s 2 of the PSHA Act as having the same meaning as in the Public Sector Act 2009. Under the Public Sector Act “administrative unit” is defined as:-
(a)a department; or
(b)an attached office;
The Tribunal is neither a department nor an attached office under the Public Sector Act2009.
Section 78 of the Legal Practitioners Act 1981 established the Tribunal. It relevantly provides: -
78—Establishment of Tribunal
(1)The Legal Practitioners Disciplinary Tribunal is established.
(2)There will be 15 members of the Tribunal appointed by the Governor on the nomination of the Chief Justice of whom—
(a) 10 must be legal practitioners; and
(b) 5 must be persons who are not legal practitioners but who are familiar with the nature of the legal system and legal practice.
(3)A person is not eligible for appointment as a member of the Tribunal under subsection (2)(a) unless that person is a legal practitioner of at least 5 years standing (taking into account, for that purpose, periods of legal practice and judicial service within and outside the State).
(4)One member of the Tribunal who is a legal practitioner will be appointed, on the nomination of the Chief Justice, to be the presiding member of the Tribunal, and another member who is a legal practitioner will be appointed by the Governor, on the nomination of the Chief Justice, to be the deputy of that member.
(5)The deputy may, in the absence of the presiding member, exercise any powers conferred by this Act on the presiding member.
Ms Pyke QC, a member of the South Australian Independent Bar, was appointed as a member of the Tribunal pursuant to s 78(2). Ms Pyke was appointed as the “presiding member’ pursuant to s 78(4).
Mr Flowers submitted that the Tribunal, or at least its Presiding Member Ms Pyke, was subject to the PSHA Act. To establish that Ms Pyke was subject to the PSHA Act Mr Flowers must establish that Ms Pyke was a “senior official” as defined in the PSHA Act. Mr Flowers submitted that Ms Pyke came under sub paragraph (d) of the definition. That is, she was “a statutory office holder with the powers and functions of a chief executive of an administrative unit”.
There are two parts to this definition. First, Ms Pyke must be a statutory office holder. Secondly, if she is a statutory office holder, the office must come with the powers and functions of a chief executive of an administrative unit.
It is convenient to deal initially with the second part of the definition.
Mr Flowers, to support his argument, relied on two decisions namely Mericka v Rathbone,[23] a decision of the Full Court and Viscariello v Legal Profession Conduct Commissioner[24] a decision of Parker J.[25]
[23] [2016] SASCFC 95.
[24] [2015] SASC 132.
[25] Mr Flowers also referred to Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111.
In Mericka, the appellant laid a charge of unprofessional conduct in the Tribunal against Ms Rathbone who, at the relevant time, was the Director of the Legal Practitioners Conduct Board and also the holder of a practising certificate. The appellant alleged that Ms Rathbone, in breach of s 73 of the Legal Practitioners Act 1981, had released confidential documents to a lawyer, the subject of a complaint by the appellant.
Ms Rathbone, in evidence, stated that her role as Director was mainly an administrative one. The Tribunal found that when releasing the documents Ms Rathbone was not acting in the course of, or in connection with, her practice of the law and dismissed the complaint. On appeal, the Full Court found that the Tribunal erred in making that finding but dismissed the appeal on other grounds.
Whether Ms Rathbone was a “senior official” for the purpose of the PSHA Act was not an issue before the Tribunal or the Full Court. While the Full Court accepted Ms Rahtbone’s evidence that her role was mainly administrative, and in fact that she was the chief administrative officer of the Board, they were not asked to decide, and therefore did not consider, whether her role as Director meant she was subject to the PSHA Act.
Mr Flowers relied upon the finding by the Tribunal (and accepted by the Full Court) that Ms Rathbone’s role was mainly administrative. So much can be accepted. However, assuming Ms Rathbone was a statutory office holder, the fact that her role involved administrative duties, and that she was found to be the chief administration officer of the Board, does not establish that she was a statutory office holder “with the powers and functions of a chief executive of an administrative unit”.
Further Ms Rathbone’s position as the Director of the Board was an entirely different, and not analogous, to the position held by Ms Pyke. Ms Pyke’s position could not be described as an administrative role, even if her duties included some administrative tasks.
There is little or no support for Mr Flowers’ submissions to be found in this case.
Turning to the case of Viscariello, the appellant, Mr Viscariello, made complaints to the Legal Practitioners Conduct Board against a number of legal practitioners. On 19 December 2013 Mr Viscariello sought permission to proceed with an application for judicial review against the Board seeking orders compelling the Board to enquire into the conduct of certain legal practitioners. On 1 July 2014, the Board was abolished by amendments to the Legal Practitioners Act 1981. Pursuant to the amendments the functions of the Board were assumed by the office of the Commissioner (s 71(1) and s 72). Importantly, pursuant to s 71(2) the appointment of the Commissioner is made by the Governor and is deemed to be an agency of the Crown. Further, pursuant to s 75, the Commissioner is a “senior official” for the purpose of the PSHA Act.
Thus, Parker J had to deal with arguments relating to the now abolished Board and the Commissioner appointed as at 1 July 2014.
Mr Viscariello alleged that members of the Board were subject to the provisions of PSHA Act. Parker J upheld that contention finding that as the Board was a body corporate and a public-sector agency, its members were “corporate agency members” and subject to the provisions of s 8 of the PSHA Act. Mr Viscariello also alleged that the Commissioner had breached s 17 of the PSHA Act. Section 17 of the PSHA Act applied to the Commissioner due to the operation of s 75 of the Legal Practitioners Act 1981.
Parker J found that the Board members were subject to s 8 of the PSHA Act, not s 17. Section 8 cannot, and does not, apply to Ms Pyke. Section 17 of the PSHA Act applied to the Commissioner due to the operation of s 75. There is no support to be found in Viscariello for the proposition that Ms Pyke is a “senior officer” for the purpose of s 17 of the PSHA Act. Further Parker J stated:[26]
Division 3 of Part 2 of the PSHA Act refers to the duties of senior officials. The term “senior official” is defined in s 2(1) to mean, amongst other things, a chief executive of an administrative unit or the chief executive of a public sector agency other than an administrative unit. The term “administrative unit” is defined in s 2(1) to have the same meaning as in the PS Act.
Section 3(1) of the latter Act defines an “administrative unit’ to mean either a department or an attached office. A department or an attached office is a body established as such under Part 6 of the PS Act or continued under Schedule 3. Neither party has submitted that the Board was an administrative unit.
[26] Viscariello v Legal Profession Conduct Commissioner [2015] SASC 132 at [47]–[48].
The Board was not an administrative unit under the definition of “senior official”. It is difficult to conceive that Ms Pyke could be said to be an office holder “with the powers and functions of a chief executive of an administrative unit”. In any event the functions of a chief executive of an administrative unit are set out in the Public Sector Act 2009.[27] I do not intend to analyse the provisions of the Public Sector Act 2009 relating to the functions of a chief executive of an administrative unit. Ms Pyke’s functions and obligations bear no resemblance to the matters described in the Public Sector Act 2009.
[27] Sections 29–35.
In my view s 17 of the PSHA Act does not apply to Ms Pyke. Even if I found that she was a statutory office holder she was not one “with the powers and functions of a chief executive of an administrative unit”. I reject Mr Flowers’ submissions. I dismiss this aspect of the ground of appeal.
Mr Flowers also submitted that Ms Pyke ought not to have appointed the members of the Tribunal as, due to her conflict, she could not bring an impartial and unprejudiced mind to the question of who should be Tribunal members. Mr Flowers did not raise that issue before Ms Pyke or the Tribunal.
In determining whether a decision maker is disqualified by reason of the appearance of bias the test is whether a fair minded lay observer might reasonably apprehend that the decision maker might not bring an impartial and unprejudiced mind to the resolution of the question to be decided.[28] Here Ms Pyke was simply appointing, from a nominated panel, those who should sit on the Tribunal. In my view, no fair minded lay observer would apprehend that Ms Pyke might not bring an impartial and unprejudiced mind to an administrative decision such as that. If the reasonable apprehension of bias was meant to apply to those chosen by Ms Pyke, while Mr Flowers put to the Tribunal that they had been invalidly appointed (as discussed) he did not suggest that they were biased. True it is that he argued with the Tribunal members from time to time about some of the rulings made. However, on review of the transcript, there is nothing to suggest that the Tribunal exhibited any suggestion of bias. Indeed the Tribunal attempted to assist Mr Flowers with the presentation of his case as much as possible.
[28] Johnson v Johnson (2000) 201 CLR 488 at [11].
I would dismiss this ground of appeal.
Ground 2: The Tribunal erred when it failed to allow the appellant to add charges of dishonesty, inappropriately removing funds from trust account and commingling (intermixing) of trust account funds against the practitioner.
Given that Mr Flowers was an unrepresented litigant, the Tribunal was careful to ensure that the charges it had to determine represented the case Mr Flowers intended to prosecute. Mr Flowers laid an amended complaint. Mr Finlayson objected to large portions of the amended complaint. On 4 July 2017, the Tribunal conducted a review of the charges and particulars. At the end of that process,[29] Mr Flowers agreed that the 7 charges and particulars represented the case he wished to present. The restructured charges and particulars, as discussed, largely cover the material Mr Flowers now says he was precluded from adding. Mr Flowers’ agreement to the charges and particulars is sufficient to dispose of this ground of appeal.
[29] T109–114.
In any event, as has already been discussed, Mr Flowers gave evidence of what he considered to be the dishonesty of Mr Finlayson in support of the charges. Indeed, Mr Finlayson when cross examined by Mr Flowers, was accused of fraudulent and dishonest behaviour. To an extent it appears that the evidence given, and submissions made, may have gone further than the agreed particulars. I do not stop to analyse that matter further. Whatever the state of the particulars, Mr Flowers put his case to Mr Finlayson. The Tribunal was obviously aware of the allegations of dishonesty and rejected them. For Mr Flowers to establish that Mr Finlayson acted dishonestly, his evidence had to be accepted by the Tribunal. As discussed earlier the Tribunal, for the reasons given, accepted the evidence of Mr Finlayson. The Tribunal found that Mr Flowers was not a credible witness. Mr Flowers failed to establish that Mr Finlayson acted dishonestly. Mr Flowers, on appeal, has not established that the Tribunal erred in its findings on the question of credibility. There is no merit in this ground of appeal and I dismiss it.
Ground 3: The Tribunal failed to afford Mr Flowers procedural fairness.
There are a number of aspects to this complaint. The ground of appeal relates to subpoenaed documents from the telephone company Internode and also the Commonwealth Bank.
The documents produced by Internode related to Mr Finlayson’s telephone records. Some numbers, said to be unrelated to the proceedings, were redacted. Mr Flowers wished to see the redacted numbers. Mr Flowers was unable to provide a proper reason to inspect the redacted numbers and the Tribunal refused his request. During the course of the appeal, Mr Flowers was given further information relating to the redacted numbers and he took the matter no further. In any event, in my view, no error has been demonstrated in the Tribunal’s approach.
Turning to the Commonwealth Bank documents, Mr Flowers subpoenaed the bank records relating to Mr Finlayson’s trust account. The documents, accompanied by a sworn affidavit of a bank officer, were produced and inspected by Mr Flowers. Mr Flowers was not content with that procedure and requested the Tribunal require the bank officer attend for cross examination. To understand the request, it is necessary to understand Mr Flowers’ allegations.
As discussed earlier when dealing with Charge 2, Mr Flowers alleged that Mr Finlayson agreed to cap his pre-trial preparation charges at $5,000. Mr Finlayson said he told Mr Flowers that he would be wanting to raise some invoices for his preparation work immediately and frequently before trial but only up to $5,000 before trial and that the balance of the money he would leave in the trust account until after the trial.[30] That is, there was an arrangement not to transfer more than $5,000 before the trial commenced.
[30] T328.
The invoices produced by Mr Finlayson supported his version of events. Mr Finlayson rendered invoices, prior to 15 September 2014, that totalled more than $5,000 but, consistent with the agreement, only transferred the sum of $5,000 prior to the commencement of the trial in the Family Court. Mr Flowers summarised the invoices produced by Mr Finlayson in Exhibit C2.[31] If genuine the invoices do support Mr Finlayson’s evidence.
[31] Page 75.
Mr Flowers, however, submitted that Mr Finlayson “constructed” the invoices for work done, at a later time, to convince the Commissioner that Mr Flowers’ original written complaint had no substance. That is, the invoices, or at least most of them, were not produced at the time stated on the document and were “constructed” by Mr Finlayson after Mr Flowers made his initial complaint to the Commissioner.
As Mr Flowers submitted to the Tribunal: [32]
Because all these invoices were constructed for the purpose of the Legal Professional Conduct Commissioner and Mr Finlayson, every document that I’ve seen, he has the ability to construct on his own. He’s in a position, a strong position to control the way this process is and this document, if it was given to me on 8 September 2014, I would have been fully aware of that prior to the letters that I sent to him, letters that I sent with regard to the agreement – I would be a fool to look at this letter and say to him in my letters, previous letters with my signature on the bottom that “this is what you agreed to”.
[32] T368–9.
Mr Flowers, when giving evidence, accepted that the invoices supported Mr Finlayson’s version of events. However, he accused Mr Finlayson of fabricating the invoices and indeed other records.[33]
[33] T372.
The difficulty facing Mr Flowers in making good that submission is that other documents produced, such as the trust account records, office records including emails and file notes produced by Mr Finlayson, supported the authenticity and timing of the invoices. So did the Commonwealth Bank records. The Commonwealth Bank records matched the trust account records (which had been audited). Mr Flowers doubted the authenticity of emails produced by Mr Finlayson despite the fact that some of the emails were his to which Mr Finlayson replied. Mr Flowers considered that Mr Finlayson, had in some unspecified manner, convinced the Commonwealth Bank to alter their records to fit in with the “fraudulent” narrative of Mr Finlayson. To put that another way, Mr Flowers was suggesting that the Commonwealth Bank had not produced a copy of the original records but only records amended on Mr Finlayson’s instructions. To support his submission Mr Flowers pointed to reference numbers on the accounts some of which commenced with a small m and some with a capital M.
Mr Finlayson gave evidence that the reference number was what he had to supply to the bank so that the transactions could be linked with his records. Sometimes he typed a small m, on others a capital M; there was no mystery. The Commonwealth Bank simply reproduced the information provided by Mr Finlayson.
Mr Flowers would not accept such a prosaic explanation. The Commonwealth Bank, he submitted, had unwittingly joined Mr Finlayson’s subterfuge. There was nothing on the face of the produced documents which suggested that they were not copies of the original banking records. The suggestion that a bank would amend (alter) its records to record transactions that either did not occur or occurred at a different time, simply on the instructions of Mr Finlayson, is fanciful.
There is no merit in this aspect of ground 3. The Tribunal correctly refused Mr Flowers’ request.
Mr Flowers also submitted that Mr Finlayson’s trust account records had been fraudulently altered to match the “altered” bank documents. That submission suffers from the same problem. Mr Finlayson explained in evidence the production and numbering of his invoices. Mr Finlayson’s trust account had been audited. Mr Flowers submissions assume that Mr Finlayson had “constructed” his documents and was a dishonest witness. The Tribunal accepted Mr Finlayson’s evidence for the reasons I have already stated. Mr Flowers alleged that Mr Finlayson had failed to comply with numerous trust account regulations. The Tribunal did not deal with those submissions; it was unnecessary for it to do so. Once the Tribunal accepted Mr Finlayson’s evidence, Mr Flowers’ submissions about trust account regulations became irrelevant.
Mr Flowers raised other matters which can be dealt with under this appeal ground. Mr Flowers, at the hearing and on appeal, complained that Mr Finlayson’s trust account and office account records had not been produced. It is hard to understand that submission as the records were produced. Mr Flowers apparently assumed they should be in a different form.
Mr Flowers also complained at the hearing and on appeal that while the invoices eventually provided were generally in sequence, invoice 80 was “missing.” Mr Finlayson explained that invoice 80 related to a different client. That explanation did not appear to satisfy Mr Flowers.
Mr Flowers is unable to point to any error in the Tribunal’s assessment of the credibility issues at the hearing. The assumptions underpinning Mr Flowers’ submissions on this ground are not made out.
There is no merit in this ground and I dismiss it.
Ground 4: The Tribunal’s treatment of facts and evidence was flawed and its decision to dismiss all charges was prejudicial, unreasonable and failed to give proper weight to the Appellants evidence on the balance of probabilities as enumerated in Briginshaw v Briginshaw.
The starting point for consideration is to observe that the Tribunal specifically applied the principles enunciated in Briginshaw. The Tribunal correctly observed that determination of charges was largely dependent on the credibility of Mr Flowers and Mr Finlayson. As noted earlier the Tribunal found it could not rely on the evidence of Mr Flowers. In my view, having reviewed the transcript and exhibits, not only was that finding open to the Tribunal, it was correct finding. Mr Flowers’ evidence was simply not believable and contrary to the objective evidence produced. As stated earlier Mr Flowers’ approach to the objective evidence was to doubt its authenticity and/or, without evidence, declare it fraudulent. The objective evidence included emails which he clearly received, bank account statements and also trust account records. The Tribunal did not accept Mr Flowers’ assertions that Mr Finlayson fraudulently constructed documents and a narrative to mislead the Commissioner.
It is convenient to deal with Mr Flowers application to produce fresh evidence on appeal. The evidence sought to be adduced is the affidavit produced by Mr Wabnitz that Mr Finlayson copied and worked on for the trial.
In Steicke v Pederick Kelly J stated (Nicholson and Lovell JJ agreeing) that:[34]
The test for the admission of further evidence on an appeal is that the evidence could not, with reasonable diligence, have been obtained for use during the original proceedings, the evidence is such that it would have had an important influence on the result of the decision the subject of the appeal, and the evidence is credible. The test is ultimately one of what the Court determines is in the interests of justice and there must be a real possibility that an opposite result would have been reached had the evidence been before the Court at first instance. Where the evidence sought to be adduced is further evidence of matters that occurred at a point in time before the hearing at first instance, that material ought to have been adduced at the initial hearing of the matter and ought not be introduced on appeal, due to the public interest in the finality of litigation. (citations omitted)
[34] [2019] SASCFC 148 at [7].
There is no doubt that the evidence was available to be tendered at the hearing. Mr Flowers alleges that he was stopped by the Tribunal from either using it or tendering it. I have reviewed the transcript. The transcript does not support that allegation although Mr Flowers does make some reference to the complaint he made against Mr Wabnitz. It is likely that Mr Flowers decided not to pursue the topic.
In my view the evidence, while credible, could not be described as important. Even if produced at trial, there was not a real possibility that an opposite conclusion would have been reached. It is not in the interests of justice to allow the evidence to be tendered on appeal. I would reject the tender of the material.
The Tribunal clearly considered all the evidence and made appropriate findings. There is no merit in this ground of appeal and I dismiss it.
Ground 5: Natural justice was denied through exclusion of “text” from the transcript of November 11, 2016 and documents filed with the Court knowingly tampered with or changed in order to alter the facts as related to law.
This ground is difficult to understand.
I interpret this ground as being an allegation that Mr Finlayson, in relation to the letter and Retainer Agreement discussed earlier, somehow tampered with the Tribunal’s documents. To put that another way, Mr Flowers stated he never received the letter of 21 May 2014 and therefore someone else must have placed the coloured copy of the letter on the Tribunal’s file. The only person who had a motive to do that was Mr Finlayson.
The Tribunal rejected Mr Flowers’ submissions that documents had been tampered with. Specifically, they rejected Mr Flowers’ evidence relating to the photograph he took to explain his receipt of the letter and Retainer Agreement mentioned earlier in these reasons. The Tribunal found that Mr Flowers did receive the letter and Retainer Agreement as alleged by Mr Finlayson. Mr Flowers is unable to point to any error in their reasoning other than he does not accept it. The suggested exclusion of text from the Transcript of November 2016 was dealt with during submissions before the Tribunal. Nothing turns on the point.
There is no merit in this ground and I reject it.
Ground 6: The Tribunal’s delay of its decision was inadequate, excessive, prejudicial, and defamed (sic) with an underlying purposes (sic) to undermine previous and pending judgments of this Honourable Court against the Commissioner.
The Tribunal clearly set out, in its Reasons for Decision, the appropriate legal principles, the relevant facts and its reasoning process in coming to the conclusions it reached. The time to deliver judgment, given the amount of material involved and allowing for the fact that the Tribunal members are part time, was reasonable. It can be accepted that Mr Flowers does not like the findings or the result but they are not relevant considerations.
The rest of the ground of appeal is unintelligible.
I reject this ground of appeal.
Ground 7: The Tribunal’s decision to dismiss all charges was obtained through fraud.
For the reasons expressed earlier there is no basis for this submission. I reject this ground of appeal.
As discussed, Mr Flowers does not accept the findings of the Tribunal. The Tribunal largely disposed of the matter on credit issues. Mr Flowers has not established that the Tribunal palpably misused its advantage or that the findings are glaringly improbable. Mr Flowers has been unable to point to any error in the way in which the Tribunal conducted the hearing or reached its decision.
On my review of the evidence, the findings made by the Tribunal were clearly open to them and in my view, were correct. Mr Flowers has not established that there has been any miscarriage of justice.
Order
The appeal is dismissed.
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