Flowers v Legal Profession Conduct Commissioner - [2022] SASCA 52

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
FLOWERS v LEGAL PROFESSION CONDUCT COMMISSIONER & ANOR
[2022] SASCA 52
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice Doyle)
14 June 2022
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - LEAVE TO APPEAL
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - PROCEDURE - APPEAL
On 16 March 2022, the primary judge dismissed three applications (the Hardiman application and two injunction applications) made by the appellant in the course of an application for judicial review of a determination made by Mr Morcombe QC acting as a delegate of the respondent.
By Notice of Appeal filed 1 April 2022, the appellant challenges each dismissal by the primary judge. The appellant’s contentions include that the judge abused her discretion and exceeded her authority in dismissing his applications and that he was denied procedural fairness due to favourable treatment based on status and race.
Held (by the Court) refusing leave to appeal and dismissing the appeal:
1.There is no reason to doubt the decision made by the primary judge and we decline to grant leave to appeal against the judge’s determination of the Hardiman application.
2.The appellant has failed to demonstrate any error by the primary judge in refusing to make orders on the injunction applications. The appeal against the injunction applications is dismissed.

Supreme Court Act 1935 (SA) s 50(5)(c); Uniform Civil Rules 2020 (SA) r 213.1, referred to.
Flowers v Legal Profession Conduct Commissioner [2017] SASC 129; Harris Scarfe Ltd (In Liq) v Ernst & Young (No 2) [2005] SASC 168; McDonald v Attorney-General for the State of South Australia [2022] SASCA 43, considered.

FLOWERS v LEGAL PROFESSION CONDUCT COMMISSIONER & ANOR
[2022] SASCA 52
Court of Appeal – Civil: Livesey P and Doyle JA
THE COURT (ex tempore):
Introduction

By Notice of Appeal filed 1 April 2022, the appellant challenges the dismissal by Stein J on 16 March 2022 of various applications made in the course of an application for judicial review of a determination made by Mr Morcombe QC.
The determination was made by Mr Morcombe QC in his capacity as delegate of the Legal Profession Conduct Commissioner (the Commissioner), dismissing a complaint made by the appellant against his former wife’s solicitor who acted in matrimonial proceedings involving the appellant between 2007 and 2015.
The appellant advised the Court that he has appealed a decision made by me on Friday declining to disqualify myself from sitting today. It is not appropriate to further comment about that appeal.
The decisions the subject of this appeal
The decisions the subject of this appeal, or application for leave to appeal, are as follows:
1.The dismissal of an interlocutory application seeking an order prohibiting the Commissioner from defending the determination in the course of the judicial review. That application also seeks an order reinstating for investigation the complaints earlier made in 2013 and 2015 which had been disposed of by the Commissioner. The appellant maintains that these complaints should be

re-opened because of deep-seated biases and prejudices within the Commissioner’s office. The appellant’s affidavit evidence also raises his concern about the conduct of the litigation on his behalf through a litigation guardian, whose involvement ceased during 2012.
2.The dismissal of two applications, which have been described as injunctions, requiring his wife’s former solicitor and others to maintain all relevant records for the period 2007 to 2015. It is said that these records should be preserved because they may be required in evidence in the judicial review proceeding or in later proceedings.
3.The appellant also says that Stein J lacked jurisdiction but in fact he seems to be saying that because she declined to sit on the judicial review, she should not have determined the interlocutory applications. No application was made that she should be disqualified from sitting on the interlocutory applications and we take the view she had jurisdiction.
Although the orders under appeal are interlocutory in nature, by s 50(5)(c) of the Supreme Court Act 1935 (SA) no leave to appeal is required where the court “grants or refuses relief in the nature of an injunction”. Otherwise, the appeal against the interlocutory orders require leave to appeal, see r 213.1(1)(c) of the Uniform Civil Rules 2020 (SA).
The appeal grounds
The grounds of appeal are as follows:
Ground 1 – The Honourable Judge Stein abused her discretion and was without jurisdiction to dismiss, based upon her Honour' s recusal, the Interlocutory Application (FDN 18) file on 24 January 2022 that sought based upon discriminatory and prejudicial practices, to include the Hardiman Principle, that the Legal Profession Conduct Commissioner (“the Commissioner”) be prohibited from defending in Judicial review the Commissioner’s assigned delegate, Mr. Neville Morcombe, dismissed complaints against then legal practitioner, Ms. Catherine Mary Hicks (Ms. Hicks) filed between 13 January 2013 and October 2015.
Ground 2 – The Honourable Judge Stein abused her discretion through her dismissal of Interlocutory Application FDN 25 and 29 that sought to preserve Ms. Hicks Trust Account Statement and other relevant to protect the integrity of the Judicial Review and the public interest to ensure that Ms. Hicks records were not destroyed as prescribed by the Legal Practitioner Act 1981.
Ground 3 – The Honourable Judge Stein, through her Honour's recusal abused/exceeded her authority through her Honour's decision to determine FDN 18 preserve her records, to include trust account records, pending judicial review. Ms. Hicks' trust account records are essential aspects that support the complaint that she engaged in fraud, authored affidavits and instructed her client, Ms. Flowers to knowingly misrepresent material facts placed in the affidavit and when true facts disputed the evidence of Ms. Flowers’ contribution, Ms. Hicks never sought to correct the misinformation but streamed ahead to mislead the Court that emulated the same behaviour from judicial officials.
Ground 4 – That the court continued distribution of favourable treatment based upon status and racial disposition and the absent and preservation of Ms. Hicks’ relevant records for and beyond judicial review violates procedural fairness and/or natural justice.
Leave to appeal
When determining whether leave to appeal should be granted, this Court acts in the interests of justice and by reference to three inter-related questions:
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.
There is a particular reluctance to grant leave to appeal where the impugned orders do not affect the substantive rights of the parties.[1]
[1] See Harris Scarfe Ltd (In Liq) v Ernst & Young (No 2) [2005] SASC 168, [14] (Bleby J); McDonald v Attorney-General for the State of South Australia [2022] SASCA 43, [21]-[23] (Livesey P and Bleby JA).
The respondent emphasises that the question whether the Commissioner is precluded from defending the judicial review proceedings by reason of the Hardiman principle has been addressed in earlier decisions of this Court. In Flowers v Legal Profession Conduct Commissioner, Lovell J reviewed a number of the relevant authorities before concluding that the Commissioner was not prohibited by the Hardiman principle from defending a determination in the course of a judicial review proceeding.[2]
[2] Flowers v Legal Profession Conduct Commissioner [2017] SASC 129, [17] (Lovell J).
The respondent points out that the Commissioner did not make the decision that is now the subject of the judicial review. That decision was made by Mr Morcombe QC, who is not taking part in the judicial review proceedings. He has agreed to abide the outcome.
The primary judge dismissed the application because there was nothing before her to suggest that she could, or should, make an order preventing the Commissioner from defending the delegate’s decision. In addition, she could not discern the basis upon which orders could be sought for the re-opening of earlier complaints which had been addressed and dismissed many years previously.
In the circumstances, there is no reason to doubt the decision made by the primary judge and we decline to grant leave to appeal.
The injunction applications
The primary judge records that there was some uncertainty during the course of the hearing before her as to whether the appellant was pressing the injunction applications or whether he would, instead, institute a new action, perhaps against the solicitor for his former wife, in which he would seek the same kind of injunction orders.
In the event, the judge determined to proceed to resolve the injunction applications on the materials before her.
The judge was concerned that the injunction applications sought documents from entities (the solicitor for the appellant’s former wife and banking institutions) who were not parties to the judicial review proceedings. Her Honour explained to the appellant the distinction between a trial on the merits, or an appeal from a trial on the merits of the family law disputes, and the judicial review proceedings concerning the lawfulness of the decision-making process leading to the dismissal of the complaint made by the appellant against his former-wife’s solicitor.
The judge noted that counsel for the Commissioner assured the court that all relevant documents were contained in the case books which had been filed with the court for the purposes of the judicial review proceedings. In any event, counsel for the Commissioner submitted that any question of asserted fraud in relation to a deposit of $15,000 into the solicitor’s trust account (one of the appellant’s concerns) was addressed in the Family Court proceedings and the reasons of the trial judge were upheld on appeal.
The judge ultimately concluded that the documents sought in the injunction applications were not relevant to the judicial review proceedings. In any event, her Honour was concerned about uncertainty over whether the documents would in fact be required “in some future, as yet undefined, proceedings”. She was also concerned about the “considerable ambiguity in aspects of the orders sought”. Finally, the primary judge was concerned about the appellant’s failure to identify any relevant source of power by which the court might compel the Commissioner to do various things, such as require the solicitor and financial institutions to preserve records.
Ultimately, the judge declined to make any of the orders sought. Her Honour was concerned with whether she was being invited to assist what was akin to a fishing expedition in a discovery application.
We proceed on the basis that leave to appeal is not required. In the circumstances outlined, the appellant has failed to demonstrate any error by the primary judge in refusing to make orders on the injunction applications.
Conclusions
Leave to appeal in respect of the Hardiman application is refused.
The appeal against the injunction applications is dismissed.