John Viscariello v Legal Practitioners Conduct Board

[2013] HCASL 188

JOHN VISCARIELLO

v

LEGAL PRACTITIONERS CONDUCT BOARD

[2013] HCASL 188
A16/2013
A19/2013

1. The applicant was found guilty by the Legal Practitioners Disciplinary Tribunal of South Australia ("the Tribunal") in April 2012 on two counts of unprofessional conduct.  The conduct in question arose out of an application for development approval, and subsequent appeals, by a trustee company of which the applicant was a director.  The Tribunal found that the applicant amended the trust deed, to withdraw the trustee's right of indemnity, with the intention of defeating possible adverse costs orders against the trustee.  The Tribunal also found that the applicant falsely and dishonestly testified to the Supreme Court of South Australia (Debelle J) to the effect that the company acted in its own capacity, and not as trustee, in relation to the development approval.

2. The applicant appealed to the Full Court of the Supreme Court against the Tribunal's findings of unprofessional conduct.  The Full Court dismissed the appeal on 21 December 2012 and, on 12 April 2013, dismissed an application by the applicant to re-open the appeal.  Around the same time, upon the Tribunal's recommendation, the respondent commenced disciplinary proceedings against the applicant in the Supreme Court.  On 21 May 2013, the Full Court of the Supreme Court ordered that the applicant's name be removed from the roll of legal practitioners. 

3. There are now before this Court two applications for special leave to appeal:  the first from the Full Court's dismissal of the application to re-open the appeal (A16/2013); the second from the Full Court's order that the applicant's name be removed from the roll of legal practitioners (A19/2013).

4. The applicant's application to re-open his appeal to the Full Court of the Supreme Court turned upon two affidavits of Ms Tanya Hamilton-Smith, the applicant's domestic partner at the relevant time.  Those affidavits had been filed in the litigation that gave rise to the disciplinary proceedings and then tendered before the Tribunal.  They contained, relevantly, an assertion that the trustee company acted in its own right in relation to the development approvals.  The applicant contended that the affidavits corroborated that part of his evidence which the Tribunal found to have been falsely and dishonestly given and that they were wrongly overlooked by the Tribunal and the Full Court on appeal.  In the litigation that gave rise to the disciplinary proceedings, Debelle J had excluded this aspect of Ms Hamilton-Smith's evidence on the basis that Ms Hamilton-Smith could not have had personal knowledge of the matter because she was not a director of the trustee company at the relevant time.  In fact, Ms Hamilton-Smith was a director.  This misapprehension of fact, not raised until the application to re-open the appeal, is said to be the basis upon which the Full Court should have re-opened the appeal.

5. On the application to re-open the appeal, the Full Court (Gray, Sulan and Blue JJ) acknowledged that it had, like Debelle J, misapprehended the fact that Ms Hamilton-Smith was a director of the trustee company at the relevant time.  It stated, however, that that misapprehension of fact was not material to its decision to dismiss the appeal from the Tribunal.  It found that the affidavits had not been tendered to the Tribunal for any testimonial purpose, but only to prove the history of the proceedings.  The applicant had not submitted to the Tribunal that the affidavits corroborated the evidence that he gave to Debelle J.  The Full Court found, in any event, that Ms Hamilton-Smith's affidavits expressed no more than a legal conclusion without any primary facts from which the legal conclusion could be drawn.  The applicant accepted that his argument on the application to re-open was a "fundamental change of position".  He submitted, however, that the Tribunal should have given testimonial effect to Ms Hamilton-Smith's affidavits as an incident of its "investigative role".  The Full Court rejected that submission.

6. In his application for special leave to appeal to this Court from the decision of the Full Court, the applicant seeks largely to re-agitate the grounds that the Full Court rejected.  No question of public importance suitable for the grant of special leave arises and the applicant has not shown any error of principle in the Full Court's approach to the application to re-open the appeal.  Special leave to appeal should be refused.

7. In his application for special leave to appeal from the order removing his name from the roll of legal practitioners, the applicant seeks to advance three grounds of appeal.  The first ground is that the order is "related to and consequential upon" the judgment that is the subject of his first application for special leave to appeal.  The second ground incorporates by reference the grounds relied upon in the first application for special leave to appeal.  The third ground is that the Full Court erred "having regard to all of the facts and circumstances of the case".  In circumstances where the first application for special leave to appeal is to be refused, the applicant's first and second grounds are without any prospects of success.  The applicant does not otherwise demonstrate any error in the Full Court's decision.  He does not enjoy sufficient prospects of success on the third ground to warrant a grant of special leave to appeal.  Special leave to appeal should be refused.

8. In each application, pursuant to r 41.11.1, we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

V.M. Bell
3 December 2013 S.J. Gageler