(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.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Flowers v Hicks [2024] SASCA 126
Case
[2024] SASCA 126
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal from a decision of a primary judge who had dismissed proceedings brought by the applicant, Mr Flowers, against the respondents. The applicant sought damages, including "punitive damages," for alleged losses stemming from earlier Family Court litigation. The primary judge had found that the proceedings constituted an abuse of process.
The central legal issue before the appellate court was whether the primary judge erred in dismissing the applicant's claims as an abuse of process. Specifically, the court considered whether the applicant's claims for damages, which sought to challenge the outcome of final Family Court orders without those orders having been set aside, amounted to an impermissible collateral attack on the Family Court's jurisdiction and decisions.
The appellate court affirmed the primary judge's reasoning. It held that the applicant's claims were an abuse of process because they sought to collaterally attack a final decision of a court of competent jurisdiction. The court reasoned that awarding damages for losses allegedly caused by compliance with Family Court orders would undermine the operation and effect of those orders. Furthermore, the court noted that the applicant had not sought to set aside the Family Court judgment and orders on the grounds of fraud or misrepresentation, and that a more appropriate avenue for such grievances lay within the Family Court itself, specifically under section 79A(1)(a) of the *Family Law Act 1975* (Cth). The court also found no reasonable basis for the claims against the first respondent, a solicitor, particularly given that prior complaints and judicial review applications had been dismissed.
The appeal was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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].