MARSHALL FLOWERS In Person v GREG FINLAYSON [2023] SASCA 9

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE BOCHNER) CIV-21-007375 Appellant: MARSHALL FLOWERS In Person Respondent: GREG FINLAYSON Counsel: MR D ROSTRON - Solicitor: FINLAYSONS LAWYERS Hearing Date/s: 10/02/2023 File No/s: CIV-22-13723 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. FLOWERS v FINLAYSON [2023] SASCA 9 Judgment of the Court of Appeal (ex tempore) (The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Nicholson) 10 February 2023 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS The appellant sought leave to appeal the dismissal of his amended claim by a Master. The appellant’s amended claim sought to relitigate matters finalised in proceedings before the Legal Practitioners Disciplinary Tribunal and the Full Court. The appeal was heard together with an interlocutory application to preserve records pending the finality of appeals including any application for special leave to appeal to the High Court. The Court held: 1. The appellant has not demonstrated that the Master erred in summarily dismissing the claim on the basis that it was precluded by issue estoppel. 2. In any event, the prosecution of a case based on the same facts and criticisms as were considered and rejected by the Tribunal and the Full Court could properly be said to amount to an abuse of process, because it would be necessary to relitigate the same controversy in order to obtain contrary findings. 3. There was no utility in granting leave to appeal or in granting an extension of time. 4. Leave to appeal must be refused and the appeal dismissed. 5. There was no basis to make an order to preserve documents pending the finalisation of the action and the interlocutory application must be dismissed. -- 1 of 8 -- Uniform Civil Rules 2020 (SA) rr 143.1, 144.2(2), referred to. Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117; Blair v Curran (1939) 62 CLR 464; Chapman & Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181; Cosenza v Roy Morgan Interviewing Services Pty Ltd [2020] SASC 65; Flowers v Finlayson [2021] SASCFC 3; Hunter v Chief Constable of the West Midlands Police [1982] AC 529; Kuligowski v Metrobus (2004) 220 CLR 363; Ramsay v Pigram (1968) 118 CLR 271, 276; The Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353, considered. -- 2 of 8 -- FLOWERS v FINLAYSON [2023] SASCA 9 Court of Appeal – Civil: Livesey P, Doyle JA and Nicholson AJA THE COURT (ex tempore): Introduction 1 By an amended Notice of Appeal, the appellant challenges the summary dismissal of his claim on 21 October 2022. The appellant seeks leave to appeal and an extension of time. He also challenges the order that he pay the respondent’s costs on a standard costs basis as well as the certificate that the costs were fit for counsel. 2 Associated with the appeal is the request for an order that, amongst others, the Commonwealth Bank preserve all records pending finality of appeals including any application for special leave to appeal to the High Court. 3 For the reasons that follow, leave to appeal should be refused, the appeal must be dismissed and the application against the Commonwealth Bank must also be dismissed. The amended grounds of appeal 4 The appellant’s 11 grounds of appeal are as follows: Ground 1 Whether the disciplinary action against the legal practitioner, Mr. Gregory James Finlayson that commenced in Legal Practitioners Disciplinary Tribunal (LPDT) with all charges dismissed on 18 December 2018 and an appeal (rehearing) that commenced before a single judge of the Supreme Court, the Honourable Judge Lovell (jurisdictional error) and two additional judges (Stanley and Peek) cosmetically added raised an issues of res judicata, issue estoppel, or is an abuse of process in civil litigation against Mr. Finlayson in the Supreme Court against Mr. Finlayson for fraud, breach of contract, negligence, and infliction of emotional distress. Ground 2 Judge Bochner’s determination that issue estoppel applied to a disciplinary action in both the LPDT and the Supreme Court were issues of the same and thus prevented a civil action in the Supreme Court was in err of facts and law. Ground 3 Whether her Honour’s misinterpretation of facts (bias) that the Commonwealth Bank engaged in fraud is misguided, an attack on credibility and a dog whistle to the bank to destroy crucial evidence in support of the claim in the Supreme Court. Ground 4 Whether the Supreme Court processes and rules were racially selective and deliberately designed to deny procedural fairness, to include denial of legal representation. Ground 5 Whether issue estoppel was created by the decisions of the Tribunal (LPDT) and Full Court in respect of the factual issues raised by the applicant to include judgment of the Full Court of the Supreme Court that was obtained through -- 3 of 8 -- [2023] SASCA 9 The Court 2 the conscious wrong doing (Fraud), to include the obstruction of justice, as delivered on 3 February 2021. Ground 6 Whether her Honour’s discretion to summarily dismiss the statement of claim on the basis that it has failed to reveal an identifiable cause of action was justifiable. Ground 7 Whether it was an abused discretion to reject the appellant’s Interlocutory application delivered to the Supreme Court Registry on 1 November 2022 which sought to Amended the Statement of Claim (pending legal advice) or in the alternative permission to appeal the orders of 21 October 2022. Ground 8 Whether her Honour’s discretion to summarily dismiss the appellant’s Statement of Claim with a racial and demeaning bias that suggested that the Appellant “… seeks to impugn the decisions of the Tribunal and the Full Court is racially demeaning was a departure from the oath of office and an abuse of discretion. Ground 9 Her Honour abused her discretion by failure to secure and issue orders to the Commonwealth Bank, ANZ, WESTPAC, and Internode to preserve Mr. Finlayson’s trust account and telephone records pending completion of all appeals against orders the dismissed the Statement of claim on 21 October 2022. Ground 10 Her Honour abused her Honour in her Honour’s determination that the matters in this case was fit for counsel. Ground 11 Whether Judge Bochner’s Reasons for Judgment were so unreasonable and unsupported by facts (except the reasons selectively and transparently disguise truth, the real truth) that absent bias and facts that created a seismic attack on appellant’s credibility that appeared consistent with racial prejudices with an opaque view that distorted and misconstrued facts in favourable to public perception and adherence to rule of law. 5 A number of these grounds do not comply with the Rules of Court or are otherwise without merit. For example, no basis has been disclosed to support the criticism that her Honour acted “with a racial and demeaning bias” (appeal ground 8) or that she erred in the exercise of the costs discretion (appeal ground 10), or that any reference at all was made to credibility, still less that her Honour acted, “absent bias and facts that created a seismic attack on appellant’s credibility that appeared consistent with racial prejudices with an opaque view that distorted and misconstrued facts”. 6 Central to the appellant’s appeal seem to be two questions. The first question is whether a decision by the Legal Practitioner’s Disciplinary Tribunal (the Tribunal) is capable of giving rise to issue estoppel and, secondly, whether the decision of the Tribunal, as upheld by the Full Court on 3 February 2021,1 answers and forecloses the issues raised for consideration by the appellant’s amended claim. 1 Flowers v Finlayson [2021] SASCFC 3 (Lovell J, with whom Peek and Stanley JJ agreed). -- 4 of 8 -- [2023] SASCA 9 The Court 3 The amended claim 7 The appellant was represented by the respondent in contested property proceedings before the Family Court of Australia in around September 2014. As part of the retainer, the respondent required and the appellant paid $15,000 on account of legal costs.2 8 In various ways, the appellant alleges that the respondent breached his contract with the appellant,3 the fiduciary duty owed to the appellant,4 and engaged in behaviour which was fraudulent,5 and which caused the appellant emotional distress.6 9 The pleading is unconventional and does not comply with the Rules of Court. It is difficult to identify the facts material to each cause of action, still less any precise allegations concerning breach, causation and loss and damage. Rather, these matters are merely asserted in Part 4 as part of the orders sought by the appellant. For example, by paragraph 7 of Part 4, the appellant has pleaded: That the Honourable Court find that the respondent engaged in dishonesty, breach of contract, breach of fiduciary duties and the respondent used fraudulent measures meant to misappropriate the applicant’s funds entrusted to his for self-gains as identified in the claim … 10 The appellant pleads that he should be awarded compensation “for loss of a fair and just entitlement [to] distribution of property” in the amount of $150,000 or such greater amount as the Court determines is “just and fair”.7 11 By paragraphs 9, 10 and 12 of Part 4, the appellant pleads: 9. That the Honourable Court findings of improper conduct whether unsatisfactory professional conduct and/or professional misconduct be referred to the Legal Profession Conduct Commissioner for the necessary disciplinary measures. 10. That the findings from the Legal Practitioners Disciplinary Tribunal dismissal of the charges and the Full court of the Supreme Court (SA) be referred to the Court of Appeal to it aside its decision in fsvor [sic] of the tribunal and all associated. … 12. In the event the respondent in exercise of any procedural right delay this action that the Honourable Court issue an order to Commonwealth Bank of Australia, Internode Communications and the respondent to preserve all relevant record pending termination of the litigation. 2 Amended claim, paragraphs 1 and 2. 3 Amended claim, paragraph 70. 4 Amended claim, paragraph 71. 5 Amended claim, paragraph 72. 6 Amended claim, paragraph 73. 7 Amended claim, Part 4, paragraph 8. -- 5 of 8 -- [2023] SASCA 9 The Court 4 12 The claim is pleaded in a narrative form, essentially reciting the history of the appellant’s dealings with the respondent, adding additional commentary. What is significant about the narrative is that it essentially follows the same narrative that the appellant pressed before the Tribunal and the Full Court. That narrative was rejected and, in particular, the Tribunal rejected the appellant’s account and preferred the respondent’s account of their brief dealings. 13 It is not necessary to go through every pleaded criticism. There are many. It is sufficient to observe that, for example, the appellant maintains allegations that the retainer agreement was not supplied to him by the respondent, that this was falsely denied by the respondent, that the respondent failed to competently prepare an affidavit and address discovery before trial and that the respondent fraudulently altered various documents. 14 However, these criticisms were all rejected by the Tribunal and upheld in the Full Court and yet they reappear as part of the pleaded narrative which it is said supports the relief claimed. The Judge carefully reviewed the pleaded allegations and demonstrated that they had previously been answered.8 15 This then is a case where there are a large number of pleaded criticisms, most of which appear to have previously been made against the respondent but rejected by the Tribunal. The rejection of those criticisms was upheld in the Full Court. The appeal against summary dismissal 16 The Judge relied on the following statement of principle regarding the preclusionary concept of ‘issue estoppel’, taken from Blair v Curran:9 A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order. Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. 8 See, for example, the Reasons of Judge Bochner, [5], [9] and [13]-[14] (the retainer), [17]-[18] (misuse of trust monies), [23]-[24] (the respondent’s dishonesty), [25]-[26] (the respondent’s incompetence) and [29]-[30] (false invoices and fraudulent documents). 9 Reasons of Judge Bochner [35]-[37], Blair v Curran (1939) 62 CLR 464, 531-532 (Dixon J). -- 6 of 8 -- [2023] SASCA 9 The Court 5 17 See too the observations of Barwick CJ in Ramsay v Pigram:10 Long standing authorities, in my opinion, warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity. The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case. 18 The Judge determined that issue estoppel could apply to a decision of the Tribunal,11 that the claim raised the same issues as were resolved by the decisions of the Tribunal and the Full Court,12 that the claim and the earlier decisions were between the same parties,13 and that the decisions of the Tribunal and the Full Court were relevantly “final” decisions.14 19 Accordingly, the Judge granted the respondent’s application for summary dismissal of the claim on the basis that the claim was precluded by issue estoppel. Had her Honour not done so, she would have struck out the pleading. Her Honour said that she would have also dismissed the action because she was unable to discern any cause of action.15 20 The Judge did not explain why she granted summary dismissal. Nonetheless the reason seems clear: she found that there was “no reasonable basis for prosecuting the claim”, see r 144.2(2) of the Uniform Civil Rules 2020 (SA). Where an order is made under this rule, it results in summary judgment.16 21 The authorities are clear: this step must be reserved for a clear case and the power is not to be exercised “lightly”. As Doyle JA has explained, the rule requires that the Court take the approach laid down by the High Court in Spencer v The Commonwealth:17 10 Ramsay v Pigram (1968) 118 CLR 271, 276 (Barwick CJ). 11 Reasons of Judge Bochner [45]-[47], citing The Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353, 453 (Gibbs J) and Kuligowski v Metrobus (2004) 220 CLR 363, [40]. 12 Reasons of Judge Bochner [50]-[53]. 13 Reasons of Judge Bochner [56]-[57]. 14 Reasons of Judge Bochner [47]-[48] and [54]-[55], citing Kuligowski v Metrobus (2004) 220 CLR 363. 15 Reasons of Judge Bochner [60]-[61]. The finding must ordinarily be that no reasonable cause of action is capable of being disclosed, see the terms of r 143.1(1) of the Uniform Civil Rules 2020 (SA): “The Court may grant judgment dismissing an action on the ground that no reasonable cause of action in the case of a claim, or basis for the application in the case of an originating application, is capable of being disclosed”. 16 See, for example, Chapman & Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181, [26]-[36] (Lander J with whom Doyle CJ and Nyland J agreed). This case provides no opportunity to address the subtle differences between strike-out, summary judgment and summary dismissal, Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117, [66]-[68] (Doyle J). 17 Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117, [59]-[60] (Doyle J). See also Cosenza v Roy Morgan Interviewing Services Pty Ltd [2020] SASC 65, [26]-[30] (Livesey J). -- 7 of 8 -- [2023] SASCA 9 The Court 6 By way of summary of the approach articulated in Spencer v Commonwealth, it can be said that the power to determine a claim summarily should not be exercised lightly. Exercise of the power requires a practical assessment of whether the applicant has real, as opposed to merely fanciful, prospects of success. While the Court need not be satisfied that the claim is hopeless or bound to fail, nevertheless it must be cautious not to do a party injustice by summarily determining an action, particularly where there are disputed issues of fact or law or mixed fact and law, merely because the Court considers that the claim is unlikely to succeed. (Citations omitted.) 22 Though summary determination must be reserved for a clear case, this case appears to be clear. The appellant wishes to relitigate issues which were determined against him by final decisions of the Tribunal and the Full Court. 23 The appellant has failed to demonstrate that the Judge was wrong to take the step of ordering dismissal in this case. Indeed, the prosecution of a case based on the same facts and criticisms as were considered and rejected by the Tribunal and the Full Court could properly be said to amount to an abuse of process, because it would be necessary to relitigate the same controversy in order to obtain contrary findings.18 Conclusion 24 As the appeal is without merit, there is no utility in granting leave to appeal (assuming that leave is required) or in granting an extension of time. 25 Likewise, there appears to be little point in making an order directed to the Commonwealth Bank to preserve documents pending the finalisation of this action. That application must be dismissed. 26 The appeal must be dismissed. 18 Hunter v Chief Constable of the West Midlands Police [1982] AC 529. -- 8 of 8 --