[2023] SASCA 7

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE CHIEF JUSTICE KOURAKIS) CIV-21-011015 Applicant: MR MARSHALL KENNETH FLOWERS In Person First Respondent: LEGAL PROFESSION COMMISSIONER Counsel: MR C MCCARTHY - Solicitor: MS KATHRYN CAIRD Second Respondent: MR NEVILLE MORCOMBE QC In Person Hearing Date/s: 10/02/2023 File No/s: CIV-22-008111 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 LEGAL PROFESSION CONDUCT COMMISSIONER & ANOR [2023] SASCA 7 Judgment of the Court of Appeal (ex tempore) (The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Nicholson) 10 February 2023 APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FOR BIAS IN JUDICIAL PROCEEDINGS COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - OBLIGATION TO DISQUALIFY Application for permission to appeal against an order of the Chief Justice made on 4 July 2022, dismissing the applicant’s application for judicial review. The application for judicial review concerned a determination made on 30 April 2021, by Mr Morcombe QC, in his capacity as the delegate of the Legal Profession Conduct Commissioner (the Commissioner), in which he dismissed the applicant’s complaints against a legal practitioner who had acted as the solicitor for the applicant’s former wife in matrimonial proceedings involving the applicant. The applicant raised several grounds in support of his application for permission to appeal, which can be summarised as follows: 1. that the Chief Justice should have recused himself; 2. that the Hardiman principle operates to preclude the Commissioner from defending these proceedings; 3. that the applicant was subjected to racial discrimination; -- 1 of 5 -- 4. that the applicant was denied procedural fairness; 5. that the conduct of the inquiry before the Commissioner was unfair towards the applicant; and 6. a challenge to a costs order made in respect of a 2022 appeal brought earlier in these proceedings. Held, (per the Court) refusing leave to appeal: 1. There is no merit to any of the grounds of appeal; the appeal is dismissed. Flowers v Legal Profession Conduct Commissioner [2017] SASC 129; Flowers v Legal Profession Conduct Commissioner [2022] SASCA 52, considered. -- 2 of 5 -- FLOWERS v LEGAL PROFESSION CONDUCT COMMISSIONER & ANOR [2023] SASCA 7 Court of Appeal – Civil: Livesey P, Doyle JA and Nicholson AJA 1 THE COURT (ex tempore): The applicant (Mr Flowers) appeals against an order made by the Chief Justice on 4 July 2022, dismissing Mr Flowers’ application for judicial review. In his application for judicial review, Mr Flowers sought to review a determination made on 30 April 2021, by Mr Morcombe QC, in his capacity as the delegate of the Legal Profession Conduct Commissioner (the Commissioner), dismissing Mr Flowers’ complaints against a legal practitioner, Ms Hicks. Ms Hicks had acted as the solicitor for Mr Flowers’ former wife in matrimonial proceedings involving Mr Flowers between 2007 and 2015. The first complaint made by Mr Flowers against Ms Hicks was made in early 2013, but he also made a number of subsequent complaints. 2 The delegation to Mr Morcombe was made by the Commissioner because an earlier determination of the Commissioner dismissing the complaints by Mr Flowers against Ms Hicks had been set aside. That earlier determination was set aside by consent during the course of judicial review proceedings brought by Mr Flowers and heard by Lovell J. Whilst Lovell J published several interlocutory rulings, his consent orders were not the subject of reasons. Mr Flowers sought to appeal that decision, but his appeal lapsed due to his failure to prosecute it in a timely manner. It would seem that his notice of appeal was also struck out by Kelly J. For reasons that will become apparent, it is relevant to mention that on 15 April 2020, the Chief Justice refused an application to reinstate the appeal, noting that, by operation of the Rules of this Court, it had lapsed. 3 In his amended notice of appeal before this Court, Mr Flowers relies upon six grounds of appeal (labelled I, II, IV, V, VIII and IX respectively), most of which are confusingly expressed and difficult to understand. Mr Flowers also relies upon lengthy written submissions and extensive documentation. The Commissioner also filed written submissions. Both parties made brief oral submissions. 4 For the reasons which follow, there is no merit in any of Mr Flowers’ grounds of appeal. The appeal must be dismissed. Ground I: recusal by the Chief Justice 5 Ground I involves a contention that the Chief Justice ought to have recused himself from hearing the application for judicial review of the 30 April 2021 determination of Mr Morcombe. The only basis given for the recusal is the Chief Justice’s earlier decision in refusing to reinstate Mr Flowers’ appeal from Lovell J, which has been mentioned earlier in these reasons. While the Chief Justice’s earlier decision was adverse to Mr Flowers, there was nothing about that decision, -- 3 of 5 -- [2023] SASCA 7 The Court 2 or his Honour’s conduct of the hearing, that provides any basis for an apprehension of bias in respect of the present matter. 6 Further, and in any event, Mr Flowers did not take any objection to the Chief Justice hearing the present matter, and so must be taken to have waived any basis for objection that he might have had. 7 Ground I is dismissed. Ground II: the Hardiman principle 8 Ground II involves a contention that the Hardiman principle operates to preclude the Commissioner from defending these proceedings. This was rejected by Lovell J in the earlier proceedings,1 and importantly was upheld by this Court in the context of these present proceedings seeking judicial review of the determination by Mr Morcombe, as a delegate of the Commissioner.2 9 The point was not taken during the hearing before the Chief Justice. 10 Ground II must be dismissed. Ground IV: racial discrimination 11 Ground IV is incomprehensible. To the extent it involves an allegation of racial discrimination in the approach taken by the Commissioner or the legal system in handling his complaints against Ms Hicks, there is no basis given, or apparent in the material before this Court, for this allegation. To the extent that it involves an allegation that the Chief Justice had some role in appointing either the former or current Commissioner, that allegation is misconceived. 12 Ground IV must be dismissed. Ground V: denial of procedural fairness 13 Ground V involves a contention that Mr Flowers was denied procedural fairness by reason that the delegate failed to publish three of his complaints (dated 16 January 2013, 6 March 2013 and 15 March 2015) to Ms Hicks, or to otherwise produce any evidence of her response to them. Mr Flowers contends that he was thereby prevented from inspecting and addressing Ms Hicks’ response or evidence in relation to these complaints. 14 As detailed in the respondent’s submissions before this Court, all complaints were before, and considered by, the delegate. He provided a summary of all of these complaints to Ms Hicks for her response. Mr Flowers was given ample opportunity to provide additional evidence or make submissions in relation to the matters in issue. The delegate’s invitations in this respect were often not responded 1 Flowers v Legal Profession Conduct Commissioner [2017] SASC 129 at [17] (Lovell J). 2 Flowers v Legal Profession Conduct Commissioner [2022] SASCA 52 at [9]-[10] (Livesey P and Doyle JA). -- 4 of 5 -- [2023] SASCA 7 The Court 3 to properly by Mr Flowers. In the absence of any particularity in Mr Flowers’ contention of a denial of procedural fairness, it must be rejected. 15 Ground V must be dismissed. Ground VIII: unfair questioning 16 Ground VIII appears to be a complaint about the conduct of the inquiry before the Commissioner, and in particular the manner of some of the questioning of the practitioner, Ms Hicks. 17 This ground, and the submissions in support of it, lack any sufficiently particularised basis for this Court to grapple with the complaint made in any meaningful way. Mr Flowers did not complain at the time about the questioning. Nor was it a matter raised before the Chief Justice. 18 Ground VIII must be dismissed. Ground IX: costs 19 Ground IX is a recently added ground that seeks to challenge a costs order made in respect of a 2022 appeal brought earlier in these proceedings. This is not a proper ground in the present appeal, which relates to the 4 July 2022 decision of the Chief Justice. Further, given that it appears to relate to a costs order made by (a two-member bench of) this Court, the ground would be incompetent. 20 Ground IX should be dismissed. Conclusion 21 For the reasons given, the appeal should be dismissed. -- 5 of 5 --