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…
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- AGLC
- Flowers v Finlayson [2021] SASCFC 3
- Case
- [2021] SASCFC 3
- Decision Date
CaseChat Overview and Summary
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
Ratio Decidendi
Legal Principle Established
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