Flowers v Hicks
[2024] SASCA 126
•25 October 2024
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
FLOWERS v HICKS & ANOR
[2024] SASCA 126
Judgment of the Court of Appeal
(The Honourable President Livesey and the Honourable Justice Bleby)
25 October 2024
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - HEARING OF APPEAL - PROCEDURE
The applicant sought leave to appeal two decisions by the primary judge made on 19 June 2024 and 27 August 2024, respectively, each summarily dismissing the actions against the respondents, the applicant’s former wife and her former solicitor.
The applicant pleaded a case that the respondents engaged in various kinds of wrongdoing associated with the conduct of matrimonial property litigation around a decade ago, which caused him loss and damage represented by the financial consequences of the judgment and associated orders made by Family Court.
The primary judge determined that both actions comprised an abuse of process under r 143.2(1) of the Uniform Civil Rules 2020 (SA), as there was a more appropriate remedy under s 79A(1)(a) of the Family Law Act 1975 (Cth), and because they sought to collaterally attack a final decision and orders made by the Family Court.
Held (the Court) dismissing both applications for leave to appeal and dismissing the application for an extension of time in the case concerning the second respondent:
1. The applications for leave to appeal are to be heard and determined by the Court of Appeal pursuant to r 212.3(1)(f) of the Uniform Civil Rules 2020 (SA).
2. The applicant’s proposed grounds of appeal and written submissions do not identify any material error in the reasons of the primary judge. The applicant’s proposed grounds are accompanied by vague, sweeping and confusing assertions of fraud.
3. Subject to hearing from parties regarding costs, the applicant must pay the respondents’ costs on a standard basis, certified fit for counsel.
Civil Liability Act 1936 (SA) s 72; Family Law Act 1975 (Cth) ss 79, 79A Part VIII; Limitation of Actions Act 1936 (SA) ss 36, 48; Supreme Court Act 1935 (SA) ss 39, 50; Uniform Civil Rules 2020 (SA) R 69.2, 143, 144, 212.2, 212.3, 213.1, referred to.
Al-Kandari v JR Brown & Co [1988] QB 665; Atkins v Australian Broadcasting Corporation [2024] SASCA 96; Ayres v Ollerenshaw [2014] NSWCA 320; Bunyan v Jordan (1937) 57 CLR 1; Collins v Metro North Hospital and Health Service & Ors [2023] QSC 194; Dickens v New South Wales [2018] NSWCA 222; Flowers v Finlayson (No 2) [2023] SASCA 12; Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; Forster & Forster [2015] FamCA 57; Forster & Forster [2016] FamCAFC 143; Hill v Van Erp (1997) 188 CLR 159; Hunter v Chief Constable of West Midlands Police [1982] AC 529; Ireland v Wightman (2014) 119 SASR 266; Keane v Woolworths Group Ltd (No 4) [2024] SASCA 113; Magill v Magill (2006) 226 CLR 551; Prince Alfred College Inc v ADC (2016) 258 CLR 134; The Beach Club Port Douglas Pty Ltd v Page [2006] 1 Qd R 307; Weldon v Neal (1887) 19 QBD 394; White v Overland [2001] FCA 1333; Wilkinson v Downton [1897] 2 QB 57; Zollo v National Australia Bank Ltd & Anor [2009] SASC 38, considered.
FLOWERS v HICKS & ANOR
[2024] SASCA 126Court of Appeal – Civil: Livesey P and Bleby JA
THE COURT:
Introduction
The applicant, Mr Flowers, has for some time now been litigating the consequences of the Family Court proceedings in which he was involved with his former wife, Ms Flowers, around a decade ago. That litigation was hard fought. As Benjamin J recorded following the trial:[1]
This case is an extreme example of deep-seated conflict flowing from the failure of a marriage. The seeds of that relationship breakdown have grown into a cancer of conflict that has so far defied resolution.
[The parties] have been engaged in constant family law proceedings since June 2007, a period of seven and a half years. The wealth they had worked hard to create, both jointly and individually, over the best part of their working lives has been decimated by this fight.
Twice final property orders have been made, first in 2010 in the then Federal Magistrates Court and the second in 2013 in the Family Court. Twice the appeal mechanisms have set aside those final orders. Akin to the ancient Indian board game ‘snakes and ladders’, the parties are back to where they commenced; now it is my turn!
These parties, or one or other of them, have been unable or unwilling to find their own solutions and have been unwilling to accept decisions of courts.
[1] Forster & Forster [2015] FamCA 57, [1]-[4] (Benjamin J).
Since then, the applicant has persistently instituted various proceedings in State courts and tribunals against his former solicitor, Mr Finlayson, as well as against his former wife and her solicitor, Ms Hicks.[2] This litigation appears to have been unsuccessful. Whether it satisfies the requirements for making a ‘vexatious litigant’ declaration and associated orders under s 39 of the Supreme Court Act 1935 (SA) has not been raised.[3]
[2] A list of the decisions concerning the various proceedings instituted by the applicant, particularly in State courts and tribunals, comprises Annexure A to these reasons.
[3] See, for example, Keane v Woolworths Group Ltd (No 4) [2024] SASCA 113.
By this action the applicant pursues his former wife’s solicitor as first respondent and his former wife as second respondent. The claim was commenced in the Supreme Court on 27 June 2022 and damages of $850,000 were claimed. Though there was some uncertainty about whether the proceedings were served, both respondents sought summary relief.
On 19 June 2023, the primary judge granted the second respondent’s application for the summary dismissal of the action against her. The applicant’s former wife sought no order for costs. The primary judge made no costs order because the second respondent’s legal representatives then acted on a “pro bono” basis.
Over a year later on 27 August 2024 the primary judge granted the first respondent’s application for the summary dismissal of the action against her and awarded her costs on a standard costs basis.
By Notice of Appeal dated 17 September 2024 the applicant now seeks leave to appeal those decisions. The application for leave in the case involving the second respondent is well over a year out of time and an extension of time is required.
For the following reasons, the applicant’s proposed appeal grounds are in each case without merit. In each case the application for leave to appeal should be dismissed. In the case of the second respondent, it is futile to grant the extension of time sought.
Whether the appeal should be heard in the Court of Appeal
The respondents contended before the primary judge that there was no reasonable cause of action, which warranted summary dismissal or, alternatively, no reasonable basis for prosecuting the action, which warranted summary judgment. The primary judge proceeded under rr 143 and 144 of the Uniform Civil Rules 2020 (SA).
By the time of the hearing involving the first respondent on 17 June 2024, the applicant was legally represented. That representation was short-lived. No notice of acting was filed.[4]
[4] Flowers v Hicks & Anor (No 2) delivered 27 August 2024 (Reasons 2), [16]-[17]. Although a stay application was filed, his Honour held there were no grounds for a stay.
In the result, the primary judge determined that both actions should be summarily dismissed as each comprised an abuse of process under r 143.2(1). Insofar as the applicant pressed a claim for damages concerning the respondents’ alleged perjury, the primary judge gave summary judgment under r 144.2(2) in each action because there was no conviction for or finding of perjury as was required by s 72(2)(a) of the Civil Liability Act 1936 (SA).[5]
[5] Flowers v Hicks & Anor delivered 19 June 2023 (Reasons 1), [21]-[22]; Reasons 2, [25]-[26]
Though the question has not been finally determined in this Court, it has been assumed that orders summarily dismissing an action are interlocutory in nature.[6] In consequence, an appeal against that kind of order lies to a single judge.[7] Leave to appeal is required.[8]
[6] Atkins v Australian Broadcasting Corporation [2024] SASCA 96, [19]-[23] (Livesey ACJ and Stein AJA).
[7] Uniform Civil Rules 2020 (SA), r 212.2(1)(a).
[8] Supreme Court Act 1935 (SA), s 50(4)(b) and Uniform Civil Rules 2020 (SA), r 213.1(1).
Nonetheless, as the applicant has sought to have these appeals heard by the Court of Appeal, and as this Court has power to hear the applications for leave to appeal, it is appropriate for this Court to do so. Accordingly, an order permitting this Court to hear the applications for leave to appeal will be made.[9]
[9] Uniform Civil Rules 2020 (SA), r 212.3(1)(f).
The claims against the respondents
Whilst the applicant’s revised claim filed on 11 August 2022 is primarily concerned with the loss he allegedly sustained as the result of the alleged fraud and misconduct of the first respondent, it is also alleged that the respondents made or were party to fraudulent misrepresentations made in the course of Family Court proceedings in the Federal Magistrates Court and Family Court of Australia (as they were then described).[10]
[10] No attempt was made by the applicant to demonstrate how he was otherwise owed any duty by the respondents as his opponents in the litigation, cf Al-Kandari v JR Brown & Co [1988] QB 665, 675 (Bingham LJ); Hill v Van Erp (1997) 188 CLR 159, 167; White v Overland [2001] FCA 1333; The Beach Club Port Douglas Pty Ltd v Page [2006] 1 Qd R 307, [17]-[19] (McPherson JA); Collins v Metro North Hospital and Health Service & Ors [2023] QSC 194, [62]-[68] (Sullivan J).
The Family Court proceedings concerned the settlement of property under s 79 of the Family Law Act 1975 (Cth).[11] They culminated in a judgment and final orders entered by a Family Court judge “by way of full and final settlement of the parties’ respective claims for settlement and/or adjustment of property under Part VIII of the Family Law Act 1975”.[12] The parties represented themselves before the Full Court of the Family Court. The applicant’s appeal and application for leave to appeal were dismissed.[13]
[11] Revised Claim 1 dated 11 August 2022[1.4] and [1.7], Reasons 1, [5]-[7].
[12] Forster & Forster [2015] FamCA 57, [1] (Benjamin J).
[13] Forster & Forster [2016] FamCAFC 143 (Thackray, Strickland and Aldridge JJ).
As a result, the applicant and the second respondent were subjected to orders concerning the disposition of their matrimonial property. Those orders remain in place and, presumably, were complied with some years ago.
The essence of the applicant’s damages claims against the respondents is that, in consequence of their wrongdoing, he allegedly sustained loss as the result of his compliance with the orders made in the Family Court.
In addition, the applicant pleads that he experienced emotional stresses which he says were intentionally inflicted, and which caused him visual impairment or loss of vision.[14] No particulars are provided. The physiological or psychological mechanism for the development of these alleged injuries is not pleaded.
[14] Revised Claim 1 dated 11 August 2022, [1.7].
It would seem that they are alleged to have been sustained as a result of the fraud and misconduct otherwise alleged against the respondents, and the applicant does not allege or particularise any separate or additional claims for loss or damage referable only to these personal injuries.[15] In that context, the relevance of the personal injury allegations is difficult to understand.
[15] Revised Claim 1 dated 11 August 2022, [1.4].
Apart from damages by way of compensation for losses allegedly sustained, the applicant also claims what he describes as “punitive damages”.[16]
[16] Revised Claim 1 dated 11 August 2022, [1.7].
The decision of the primary judge
As the primary judge observed, allegations concerning an alleged miscarriage of justice by reason of fraud or the giving of false evidence can be made the subject of an application under s 79A(1)(a) of the Family Law Act 1975 (Cth):
Setting aside of orders altering property interests
(1)Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; …
…
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
The primary judge expressed the view that any dispute about the outcome of the applicant’s Family Court litigation “should more properly be dealt with” by the Family Court.[17] His Honour found that the proceedings before him comprised an abuse, in part because there was a more appropriate remedy under s 79A(1)(a) of the Family Law Act 1975 (Cth).[18]
[17] Reasons 1, [9]; Reasons 2, [9]. This must now of course be regarded as a reference to the Federal Circuit and Family Court of Australia.
[18] Reasons 1, [20]; Reasons 2, [21].
There is no allegation or evidence of any attempt, still less a successful application, by the applicant to set aside the Family Court judgment and orders on the ground of fraud or fraudulent misrepresentations.[19]
[19] Cf Flowers v Finlayson (No 2) [2023] SASCA 12 (Livesey P, Doyle JA and Nicholson AJA).
The gravamen of the ruling made by the primary judge was that the actions against the respondents each comprised an abuse of process because they sought to collaterally attack a final decision and orders made by a court of competent jurisdiction.[20] That is to say, it was an abuse of process to attempt to collaterally attack the outcome in the Family Court by pressing a claim for damages for the financial consequences of that outcome for so long as the outcome stands. If damages were awarded for the “losses” allegedly caused by the applicant’s compliance with the Family Court’s orders that would undermine the operation and effect of the Family Court’s orders.
[20] Reasons 1, [16]-[20]; Reasons 2, [19]-[20], relying upon Hunter v Chief Constable of West Midlands Police [1982] AC 529, 541B (Lord Diplock); Zollo v National Australia Bank Ltd & Anor [2009] SASC 38, [79]-[80] (White J, with whom Kelly J agreed).
In addition, in the case of the first respondent, the primary judge described the “novel causes of action” pleaded against her as giving rise to no claim “simply because a solicitor acted against you in litigation”.[21] His Honour described the claims based on the solicitor allegedly “breaching duties to the court [as] novel and unlikely”, especially as the complaints made by the applicant to the Legal Practitioners Conduct Commission about the first respondent were investigated and dismissed or closed by no later than 30 April 2021.[22] An application for judicial review was dismissed by Kourakis CJ on 4 July 2022.[23] The primary judge concluded that no reasonable basis had been established for any claim against the first respondent.[24]
[21] Reasons 2, [22].
[22] Reasons 2, [22]-[23].
[23] Reasons 2, [23].
[24] Reasons 2, [22]-[23].
Whilst it is usual to order a stay of proceedings which comprise an abuse of process, it was open to the primary judge to summarily dismiss them.[25]
[25] Uniform Civil Rules 2020 (SA), r 143.2(1).
Determining the application for leave to appeal
When determining whether to grant leave to appeal, this Court acts in the interests of justice and by reference to three, inter-related questions:[26]
(1)whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal;
(2)whether the decision raises an issue of principle or general importance; and
(3)whether allowing the decision to stand would work a substantial injustice to the applicant.
[26] For example, see Atkins v Australian Broadcasting Corporation [2024] SASCA 96, [24]-[25] (Livesey ACJ and Stein AJA).
The Court gave the parties an opportunity to put on written submissions on the question of leave to appeal. Those submissions have been received and considered. The applicant commenced his submissions as follows:[27]
This long protracted history of litigation must be assigned to the courts’ consistent influence through what appears as racially motivated denial of legal representation and statutory officials and judicial officers of the courts to discriminately compromise and allocate some justice rather than equal justice, a system that selectively dismissed and made unaccountable, but not limited to, the former solicitor and officer of the Court, Catherine Mary Hicks (hereinafter “first respondent) and solicitor Gregory James Finlayson (Mr. Finlayson), for egregious and unconscionable conduct (based upon facts and evidence) that included, inter alia, fraud, conspiracy, misrepresentation of evidence, obstruction of justice and perjury, and respectfully this egregious conduct endorsed by the Chief Justice (Kourakis) compromise of the Supreme Court Rules by assignment of a single judge (Judge Lovell) to presided over the appeal of the decision (Flowers v Finlayson, LPDT 14‑2015) of the Legal Practitioners Disciplinary Tribunal (panel members-Solicitor and DPP employee, Mr. D. Petracarro and civilian Patsy Kellet), delivered on December 20, 2018 (“LPDT Decision). Respectfully, through several days of Judge Lovell’s hearing the appeal (SCCIV-19-17), his Honour knowingly misrepresented the fraudulent evidence (Mr. Finlayson’s Commonwealth Bank Trust Account Statement and Internode Tax Invoice) but when the Court was informed of the jurisdictional error, respectfully, the Chief Justice constituted a three judge Court (Stanley, Peek and Lovell JJ)-for compliance purposes only) and the Full Court delivered its judgment with reasons for judgment allegedly authored Judge Lovell on February 3, 2021. But for Mr. Finlayson Fraud and obstruction of justice, to include Judge Lovell’s departure from his judicial oath the Full Court decision resulted in a miscarriage of justice.
[27] Written Submissions of Marshall K Flowers, [2].
The applicant is not legally represented. His grounds of appeal are as follows:
Note 1: FDN 42 and 43, Interlocutory Application and Affidavit, dated 26 August 2024, the Appellant sought that the Honourable Judge Dart allow an Amended Statement of Claim to add the Respondent, Gregory James Finlayson to be added as a Third respondent and if allowed that the Honourable Judge Dart recuse himself, or be disqualified from hearing and determining the civil action (CIV-22-007028) for bias and apprehended bias.
Note 2: Respectfully, the appellant is without legal representation due to the egregious conduct of the respondents, to include judicial officials that knowingly participated in judicial wrongdoing, but in order to dismiss compromised judicial oath and integrity, the court through its power has consistently discouraged legal representation in order to preclude the facts and truth from being subjected to procedural fairness.
No solicitor or judicial officer appears accountable for obstruction of justice and what appears as selective enforcement of rules that promotes the trier of facts (judicial officials) to blind allegiance to judicial and institutional wrongdoing that consistently dismissed the Oath for judicial officials.
As part of the orders he seeks, the applicant alleges fraud and says the purpose was to “pervert the course of justice”:
Important: That the Honourable Court exercise its authority to investigate deleted evidence (oath) from transcripts, to include removal of “exhibit evidence” from official court records under control by the Legal Practitioners Disciplinary Tribunal (LPDT 14 of 2015). Evidence removed but replaced with knowingly false and untrue records meant to undermine my credibility and with the Chief Justice assignment (based upon information) of a single judge of the Court to hear an appeal from the LPDT but allowed the single judge to condone and misrepresent the fraudulent evidence before the Court. Also, upon inspection of the file about 21 November 2017 an unknown (e-mail to Finlayson, dated 8 March 2016) document attached to (my) evidence (charges) but removed the following day. The purpose being to pervert the course of justice.
1.That prior to hearing this Notice of Appeal that the Honourable Court in its (Supreme Court) inherent jurisdiction order an independent investigation of the facts and evidence of the Appellant claim of judicial misrepresentation(s) of evidence, corruption and obstruction of justice.
2.If leave is required for summary dismissal (CIV 22-007028), that leave be granted and the Notice of Appeal be accepted pursuant to the Rule 214.2 be filed.
3.That the Court of Appeal set aside (Order 1, 2, and 3) the summary dismissal of the Appellant’s Statement of Claim against the First Respondent, Catherine Mary Hicks, in the order issued on 27 August 2024.
4.That the cost order be set aside (CIV 22-007028)(No. 2).
5.That the dismissal of the Interlocutory Application and affidavit filed on 26 August 2024 be set aside.
6.The if warranted, that the Full Court grant leave and an extension of time to Appeal the Order of the Honourable Judge Dart, issued on 19 June 2023.
7.That the Full Court of Appeal set aside the summary dismissal of the Appellant’s Statement of Claim against the Second Respondent, Anna Flowers issued, on 19 June 2023 and allow the second respondent to be formally served.
8.That the Court set aside the Honourable Judge Dart’s dismissal of the appellant’s Interlocutory Application and Affidavit filed on 26 August 2024.
9.That the Cost order in favour of the Respondent and against the appellant be dismissed.
10.That the Appellant be granted cost in the proceedings below (CIV 22-007028) (No. 2) and this appeal.
11.Any other order that the Court determines appropriate in the interest of justice.
As has been said many times, to allege fraud is a serious matter and it must be distinctly alleged and particularised, and clearly proved.[28] The allegations of fraud made by the applicant in this case do not rise beyond vague, sweeping and confusing assertions. Whether one considers the proposed grounds or the applicant’s written submissions, no attempt has been made to identify material error in the reasons of the primary judge. On that basis alone the proposed appeal grounds, in each matter, are without merit.
[28] Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486, [25]-[26] (French CJ, Gummow, Hayne and Kiefel JJ).
No application was made by the applicant to the primary judge that he should be disqualified from sitting on the ground of actual or apprehended bias. It would seem that the applicant thought that this was in any event conditional on the joinder of his former solicitor, Mr Finlayson. The connection between ordering joinder and whether the primary judge was actually or ostensibly biased it is not obvious or explained.
Whilst the refusal to order joinder is the subject of separate complaint, the complaint cannot survive the dismissal of the action.[29] The application to join Mr Finlayson has no obvious bearing on whether or not the primary judge should have granted the second respondent’s application for summary dismissal.
[29] Appeal Grounds, Part 1 “Orders Challenged”.
Though none of the proposed grounds or complaints appear to have any merit, the applicant’s personal injury claims were not specifically addressed by the primary judge or the parties before us. That is understandable because the personal injury claims, as pleaded, depend on the allegations of fraud, perjury and other wrongdoing by the respondents and they are pleaded as giving rise to the same loss and damage.
To be clear, as pleaded, the allegations concerning the applicant’s personal injuries do not appear to go anywhere. These claims are either parasitic and dependent on the fraud and other wrongdoing alleged against the respondents, resulting in the same financial losses alleged to result from compliance with the orders of the Family Court, or there is one fleeting, vague and embarrassing reference to negligence.[30] Neither gives rise to any reasonable cause of action.
[30] Revised Claim 1 dated 11 August 2022, [1.9].
However, even if one leaves all of that to one side, and the assumption is made that the applicant intended to press a claim for damages for the intentional or reckless infliction of harm, there is no reasonable cause of action disclosed or, alternatively, no reasonable basis for prosecuting an action of that kind.[31]
[31] To be clear, there was no attempt to articulate a claim for damages for the intentional or reckless infliction of harm of the kind recognised in Wilkinson v Downton [1897] 2 QB 57; Bunyan v Jordan (1937) 57 CLR 1; Magill v Magill (2006) 226 CLR 551; Dickens v New South Wales [2018] NSWCA 222.
First, and as is obvious, a claim of that kind is not clearly or properly pleaded. No attempt is made to identify what the respondents did apart from conducting Family Court litigation (though that conduct is trenchantly criticised). The present plea suggests only emotional stress and consequential problems with vision, and nothing more, as the result of the applicant’s participation in Family Court litigation. How that conduct and participation could cause or properly support a claim for injuries or harm manifesting many years after that litigation ended is not pleaded or particularised.
Secondly, whether a hypothetical action of that kind could ever be recognised in law as a good claim seems unlikely. However the allegations are viewed, they cannot support the claims for loss and damage allegedly sustained years before the injuries or harm. Nothing more is pleaded or alleged. This is a problem which appears go beyond any mere pleading issue which might be susceptible to amendment.[32]
[32] In which case a limitation issue would arise. Any amendment would be caught by the rule in Weldon v Neal (1887) 19 QBD 394 and operate only from the date of the amendment. The paucity of what is pleaded makes it difficult to see how it could be ‘saved’ by the operation of r 69.2(3)(a) of the Uniform Civil Rules 2020 (SA) because it could be said that the amendment arises out of “substantially the same facts as the original cause of action”.
Thirdly, the applicant’s claim was first instituted on 27 June 2022, and he pleads that the relevant limitation period is three years, and that his personal injuries “occurred about September 2018”.[33] Exactly when the alleged injuries occurred, during September 2018 is not better particularised. It would seem that this hypothetical cause of action likely accrued only once injuries were sustained or, if they could be viewed as “latent” (which seems unlikely), once they first came to the applicant's knowledge at some stage during September 2018, say at the end of September 2018 at the latest.[34] Nonetheless, on these bases, the time within which the applicant could commence this hypothetical action “in which the damages claimed consist of or include damages in respect of personal injuries”[35] expired three years after the cause of action accrued at the end of September 2018, being a date at the end of September 2021.
[33] Revised Claim 1 dated 11 August 2022, [1.9].
[34] Limitation of Actions Act 1936 (SA), s 36(1a).
[35] Limitation of Actions Act 1936 (SA), s 36(1).
This hypothetical action would therefore be time-barred.
Fourthly and finally, there is no pleading seeking an extension of time in accordance with the terms of the Limitation of Actions Act 1936 (SA).[36] It is now more difficult to secure an extension because by s 48(3) the court cannot extend a limitation of time prescribed by that Act unless, for example, the applicant has first ascertained a material fact within the meaning of s 48(3a)(a), where it forms an essential element of the cause of action, or a material fact within s 48(3a)(b), where it has major significance on an assessment of a plaintiff’s loss.[37] The Court has no material with which to evaluate whether the applicant might have had any prospect of satisfying the requirements of s 48 or of securing a favourable exercise of the court’s discretion to extend time.[38]
[36] Limitation of Actions Act 1936 (SA), s 48.
[37] Ireland v Wightman (2014) 119 SASR 266, [51]-[55] (Parker J, with whom Vanstone and David JJ agreed), followed in Ayres v Ollerenshaw [2014] NSWCA 320, [77]-[78] (Barrett JA, with whom Gleeson and Leeming JJA agreed).
[38] Prince Alfred College Inc v ADC (2016) 258 CLR 134, [99]-[100] (French CJ, Kiefel, Bell, Keane and Nettle JJ).
These matters demonstrate that even if a hypothetical - if not speculative - action concerning harm sustained in September 2018 were in issue (which is not likely), it cannot be said that any reasonable cause of action has been disclosed or, alternatively, that there is any reasonable basis for prosecuting it.
Certainly, there is no basis to grant leave to appeal concerning this kind of time-barred action which has not been addressed in the applicant’s proposed appeal grounds or submissions.
Leave to appeal should be refused. The decision of the primary judge is not attended with doubt sufficient to warrant its reconsideration on appeal, and no issue of principle or general importance is raised. Indeed, allowing this decision to stand has not been shown to work any substantial injustice to the applicant.
Conclusion
As the applicant’s proposed grounds of appeal are without merit, leave to appeal in each case must be refused. In the case concerning the second respondent, there is therefore no utility in granting an extension of time.
Subject to hearing from the parties regarding costs, the Court orders:
1.Pursuant to r 212.3(1)(f) of the Uniform Civil Rules 2020 (SA), the applicant’s applications for leave to appeal are to be heard and determined by the Court of Appeal.
2.In the case of the first respondent, the application for leave to appeal is dismissed.
3.In the case of the second respondent, the applications for an extension of time and for leave to appeal are dismissed.
4.The applicant must pay the respondents’ costs on a standard basis, certified fit for counsel.
ANNEXURE A: DECISIONS
No.
Date Delivered
Case Name and Citation
(*Not an SA proceeding)
Outcome
1
23 January 2013
*Forster & Forster (No 2) [2013] FAMCA 50
Application by the applicant that a contract for the sale of land be deemed void, that the Family Court proceedings be stayed, etc dismissed.
Application by the applicant’s former wife that a new Certificate of Title be issued to the new owners of the relevant land, granted.
Costs reserved.
2
10 February 2015
*Forster & Forster [2015] FAMCA 57
Family Court decision and orders following a trial involving the applicant and his former wife concerning s 79 of the Family Law Act 1975 (Cth).
3
12 August 2015
*Forster & Forster (No 3) [2015] FAMCA 790
Leave given to the applicant to obtain and provide to the Legal Profession Conduct Commissioner (LPCC) of South Australia transcript of proceedings before the Family Court concerning a complaint against a practitioner (arising out of the proceedings the subject of Decision 2).
4
27 August 2015
Determination by LPCC
The applicant’s complaint against a legal practitioner, his former wife’s solicitor, dismissed.
5
6 June 2016
Flowers v Legal Profession Conduct Commissioner & Ors (Decision of Justice Lovell)
The applicant sought judicial review of the dismissal of his complaint against his former wife’s solicitor (Decision 4).
Certain respondents were granted an order removing Greg May, Meredith Strain and Catherine Hicks as second, third and fourth defendants respectively from the proceedings for judicial review. Application for leave to appeal that decision, dismissed.
6
1 August 2016
Flowers v Finlayson (Decision of Legal Practitioners Disciplinary Tribunal (LPDT))
The applicant’s application for a stay of Legal Practitioners Disciplinary Tribunal proceedings dismissed.
The applicant wanted the Director of the LPDT to address his alleged conflict concerning his statutory duty to investigate the case against the practitioner, that the Director comply with s 17 of the Public Sector (Honesty and Accountability) Act 1995 (SA), and that the Tribunal hearing the proceedings be declared null and void.
7
9 August 2016
*Forster & Forster [2016] FAMCAFC 143
Appeal from Decision 2 dismissed and application for leave to appeal refused.
8
31 August 2016
Flowers v Legal Profession Conduct Commissioner [2016] SASCFC 98
Application for permission to appeal against Decision 5, dismissed.
9
28 April 2017
Flowers v Legal Profession Conduct Commissioner [2017] SASC 62
The applicant had standing to seek judicial review of Decision 4.
10
12 September 2017
Flowers v Legal Profession Conduct Commissioner [2017] SASC 129
The applicant’s application to restrain the LPCC from defending his own determination in judicial review proceedings dismissed.
11
20 December 2018
Flowers v Finlayson (Decision of LPDT)
Complaint against former solicitor dismissed.
12
18 April 2019
Flowers v Finlayson (Decision of LPDT)
Complainant to pay the practitioner’s costs of and incidental to the proceedings. Applications for a stay of costs and security for costs, dismissed.
13
3 February 2021
Flowers v Finlayson [2021] SASCFC 3
Application for leave to appeal against Decision 11, dismissed.
14
17 March 2021
Flowers v Finlayson (Decision of Judge Dart a Master of the Supreme Court)
Summary dismissal of an application for an extension of time in which to seek a taxation of costs.
15
9 April 2021
Flowers v Finlayson [2021] SASCA 21
Application for leave to appeal Decision 12, dismissed.
Application for leave to appeal a Master of the Supreme Court’s adjudication of costs decision, dismissed. Application for a stay, and various other ancillary orders, dismissed.
16
30 April 2021
Determination of LPCC
The applicant’s complaint against a legal practitioner, his former wife’s solicitor, dismissed.
17
21 May 2021
Flowers v Finlayson (Decision of Chief Justice Kourakis)
Application for leave to appeal Decision 14 dismissed.
18
9 August 2021
Flowers v Finlayson [2021] SASCA 75
Application for leave to appeal Decision 14 struck out. Application for leave to appeal against Decision 17, dismissed. Application for leave to appeal against orders of Parker J for the filing of written submissions by the parties, dismissed.
19
15 March 2022
Flowers v Legal Profession Commissioner & Anor (Decision of Justice Stein)
Three interlocutory applications (a Hardiman application and two injunction applications) in the judicial review of Decision 16 proceedings, dismissed.
20
14 June 2022
Flowers v Legal Profession Conduct Commissioner & Anor [2022] SASCA 52
Application for leave to appeal Decision 19, dismissed.
21
29 June 2022
Flowers v Finlayson (Decision of Justice McDonald)
Two interlocutory applications, the first relating to setting aside Decision 13, Decision 15 and a Master of the Supreme Court’s adjudication of costs decision, and the second, regarding Livesey P’s direction to the Deputy Registrar to reject the filing of the first interlocutory application, dismissed.
22
4 July 2022
Flowers v Legal Profession Conduct Commissioner & Anor (Decision of Chief Justice Kourakis)
Application for judicial review of Decision 16 dismissed.
23
21 October 2022
Flowers v Finlayson (Decision of Judge Bochner a Master of the Supreme Court)
Summary dismissal of a 2022 action against the respondent, the applicant’s former solicitor, alleging breaches of contract and fiduciary duties and negligence.
24
10 February 2023
Flowers v Legal Profession Conduct Commissioner & Anor [2023] SASCA 7
Application for leave to appeal Decision 22 dismissed.
25
10 February 2023
Flowers v Finlayson [2023] SASCA 9
Application for leave to appeal Decision 23, dismissed.
*Flowers v Finlayson [2023] HCASL 119, on 10 August 2023 the High Court dismissed the applicant’s application for special leave to appeal.
26
10 February 2023
Flowers v Finlayson (No 2) [2023] SASCA 12
Application to reopen and set aside Decision 13, dismissed.
*Flowers v Finlayson [2023] HCASL 118, on 10 August 2023 the High Court dismissed the applicant’s application for special leave to appeal.
27
19 June 2023
Flowers v Hicks & Anor (Decision of Judge Dart a Master of the Supreme Court)
Summary dismissal of a 2022 action against the applicant’s former wife.
28
27 August 2024
Flowers v Hicks & Anor (No 2) (Decision of Judge Dart a Master of the Supreme Court)
Summary dismissal of the 2022 action against the applicant’s former wife’s solicitor.
29
25 October 2024
Flowers v Hicks & Anor [2024] SASCA 126
Applications for leave to appeal and an extension of time to seek leave to appeal the summary dismissal decisions were dismissed.
5
17
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