Flowers v Legal Profession Conduct Commissioner

[2016] SASCFC 98

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

FLOWERS v LEGAL PROFESSION CONDUCT COMMISSIONER

[2016] SASCFC 98

Judgment of The Full Court

(The Honourable Justice Kelly, The Honourable Justice Bampton and The Honourable Justice Doyle)

31 August 2016

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT - INTERLOCUTORY ORDERS AND JUDGMENTS

ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - REVIEWABLE CONDUCT

Application for permission to appeal.

The applicant seeks permission to appeal against an interlocutory order made by a single Judge by which the names of the second, third and fourth defendants were removed from the applicant’s proceedings for judicial review. Those proceedings seek review of an order made by the first defendant, the Legal Profession Conduct Commissioner.

Held per the Court (refusing permission to appeal):

1.       There was no error by the single Judge.

2.       The joining of the second, third and fourth named defendants in the judicial review proceedings by the applicant was misconceived.

3.       None of the second, third or fourth named defendants made any relevant decision. They are not necessary parties to the action nor do they have any interest in defending it. There is no substantive issue as against each of the second, third and fourth named defendants which could ever be made in favour of the applicant.

Supreme Court Civil Rules 2006 r 200A(2), r 288, r 289, referred to.

FLOWERS v LEGAL PROFESSION CONDUCT COMMISSIONER
[2016] SASCFC 98

Full Court:   Kelly, Bampton and Doyle JJ

1. THE COURT:      On 6 June 2016 a single Judge made an order by which the names Greg May, Meredith Strain and Catherine Hicks were removed as second, third and fourth defendants respectively in proceedings for judicial review brought by the applicant, Marshall Kenneth Flowers.  The applicant sought review of an order made by the first defendant in those proceedings, the Legal Profession Conduct Commissioner (the Commissioner).  At the time the order was made the applicant sought and was refused permission to appeal against that order by the Judge.  The applicant now seeks permission from this Court pursuant to r 289(2) of the Supreme Court Civil Rules 2006 to appeal against the order removing the second, third and fourth defendants from the judicial review proceedings.

2. The Judge’s order removing three of the defendants arose upon counsel acting for the second named defendant, Mr May in his personal capacity, and the third named defendant, Ms Strain, bringing an interlocutory application to have their names removed from the applicant’s proceedings for judicial review. 

3. It was accepted by the defendants at the hearing on 6 June 2016 that for the purpose of the judicial review proceedings the Commissioner had made a relevant decision.  The basis of the second and third defendants’ application to be removed from the proceedings was that neither the second or third defendants in the proceedings had made any decision, had any interest in defending the action, or were a necessary party to the review proceedings. No such application was made on behalf of the fourth defendant, Ms Hicks, however in his reasons for interlocutory decision the Judge treated the matter as if such a similar application had been made.

4. The Judge who heard the application agreed with the second and third defendants’ submissions and accordingly the order the subject of this application for permission was made on 6 June 2016. 

5. The order made by the Judge on 6 June 2016 which removed three of the named defendants from the proceedings may be correctly categorised as an interlocutory order.  By virtue of rr 288 and 289 of the Supreme Court Civil Rules 2006, no appeal lies from an interlocutory judgment without permissions either of the Court at first instance or the appeal Court.  The purpose of the requirement that an applicant who wishes to appeal an interlocutory decision first obtain permission is to expedite the determination of the real questions in issue and to save unnecessary expense and delay. 

6. As the single Judge succinctly pointed out in his reasons for interlocutory decision, when the hearing of the original application for judicial review is heard the applicant will have the opportunity to put forward all of his substantive arguments concerning the decision made by the Commissioner, Mr May, in his official capacity.  The joining of the second, third and fourth named defendants in the judicial review proceedings by the applicant was misconceived.  None of the named second, third or fourth defendants, including Mr May in his personal capacity, made any relevant decision.  They are not necessary parties to the action, nor do they have any interest in defending it.  The only relevant party under r 200A(2) of the Supreme Court Civil Rules 2006 is the Commissioner.  There is no substantive issue as against each of the second, third and fourth named defendants which could ever be made in favour of the applicant.  

7. For these reasons we would refuse permission to appeal.