Legal Practitioners Conduct Board v Viscariello (No 2) - [2013] SASCFC 47

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
LEGAL PRACTITIONERS CONDUCT BOARD v VISCARIELLO (No 2)
[2013] SASCFC 47
Reasons for Rulings of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Blue)
31 May 2013
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA - ORDERS
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - GENERALLY
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - PROCEEDINGS IN OPEN COURT OR IN CAMERA
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS
HIGH COURT AND FEDERAL COURT - FEDERAL COURT - APPELLATE JURISDICTION - PROCEDURE - STAY OF PROCEEDINGS
Where the Court ordered that the practitioner be struck off and his name removed from the roll of legal practitioners and published reasons for judgment - where prior to publication of its reasons and formalisation of its orders, the Court heard applications by the practitioner for suppression and a stay of the order for strike off - whether the practitioner's private interest in a suppression order outweighed the public interest in open justice - whether the practitioner's private interest in a stay outweighed the public interest in the order of the Court removing the practitioner’s name from the roll of practitioners being formalised and the reasons published.
Held: Application for suppression rejected - application for a stay rejected - interim stay for 28 days granted to allow the practitioner to apply to the High Court for a stay pending the practitioner’s application for special leave to appeal to the High Court.
Evidence Act 1929 (SA) s 69A and Pt 8, referred to.
Moyes & Anor v J & L Developments Pty Ltd & Anor (No 2) [2007] SASC 261; Australian Broadcasting Commission v Parish (1980) 43 FLR 129; Hogan v Hinch (2011) 243 CLR 506; Legal Practitioners Conduct Board v Viscariello [2013] SASCFC 37; Viscariello v Legal Practitioners Conduct Board (No 2) [2013] SASCFC 27; Viscariello v Legal Practitioners Conduct Board [2012] SASCFC 147; Minter Ellison (A Firm) & Anor v Raneberg [2011] SASC 159; Scott v Scott [1913] AC 417; Attorney-General v Leveller Magazine Ltd [1979] AC 440; Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited (1986) 161 CLR 681; Edelsten v Ward (No 2) (1988) 63 ALJR 346; Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460, considered.

LEGAL PRACTITIONERS CONDUCT BOARD v VISCARIELLO (No 2)
[2013] SASCFC 47
Full Court: Gray, Sulan and Blue JJ
THE COURT.

On 21 May 2013, the Court ordered that John Viscariello be struck off, and that his name be removed from, the roll of legal practitioners. The Court published reasons for its judgment.[1]
[1] Legal Practitioners Conduct Board v Viscariello [2013] SASCFC 37.
On that day and prior to the publication of its reasons, the Court heard applications by the practitioner for suppression of the reasons and orders of the Court, and for a stay of the order for strike off. The Court rejected the practitioner’s applications for suppression and for a stay. The Court granted an interim stay for 28 days to allow the practitioner to apply to the High Court of Australia for a stay pending the practitioner’s application for special leave to appeal to the High Court against the orders of the Full Court dismissing the practitioner’s appeal and the application to reopen the appeal. Our reasons for refusing the applications of the practitioner and for granting the interim stay follow.
Background
The practitioner was charged by the Legal Practitioners Conduct Board with unprofessional conduct. It was alleged that he engaged in conduct in an attempt to defeat an adverse costs order made against J & L Developments Pty Ltd, and falsely and dishonestly gave evidence in this Court on 1 December 2006 before Debelle J in the matter of Moyes & Anor v J & L Developments Pty Ltd & Anor (No 2).[2]
[2] Moyes & Anor v J & L Developments Pty Ltd & Anor (No 2) [2007] SASC 261.
The Legal Practitioners Disciplinary Tribunal found the practitioner guilty of unprofessional conduct in respect of both charges. The Tribunal was satisfied to the requisite degree that the practitioner lied to Debelle J in giving evidence in this Court and lied to the Tribunal in giving evidence in the course of the inquiry by, in effect, repeating the false evidence given before Debelle J.
The Board sought an order that the practitioner’s name be removed from the roll of legal practitioners. The practitioner appealed in separate proceedings before this Court against the findings of the Tribunal.
On 21 December 2012, this Court dismissed the practitioner’s appeal, concluding that no error had been made by the Tribunal in reaching its earlier referred to conclusions.[3] The practitioner applied to reopen the appeal. On 12 April 2013, this Court dismissed the application to reopen.[4]
[3] Viscariello v Legal Practitioners Conduct Board [2012] SASCFC 147.
[4] Viscariello v Legal Practitioners Conduct Board (No 2) [2013] SASCFC 27.
On the hearing of the argument regarding the application to strike off, counsel advised the Court that the practitioner proposed to seek special leave to appeal to the High Court against this Court’s dismissal of the application to reopen the practitioner’s appeal. The Court was provided with a draft of the proposed application for special leave. The practitioner applied to adjourn the hearing of the Board’s application for an order striking the name of the practitioner from the roll of legal practitioners.
During the hearing of the application, the Court suggested that the application for a stay could be viewed as premature. The Court suggested that an appropriate procedure that could be followed was to hear the parties’ submissions with regard to the strike off application and that, at the time of judgment, the application for a stay could be pursued. Counsel for both parties agreed that the proposed procedure was appropriate in the circumstances. The application for a stay at that time was not pressed.
When the time came for delivering judgment, the Court made its reasons and proposed orders on the Board’s application available to the parties and heard further submissions on the consequential matters before publishing its reasons and making formal orders.
Application for Suppression
The practitioner sought an order suppressing the reasons of the Full Court and the order that his name be removed from the roll of legal practitioners. Counsel for the practitioner adopted the oral submissions put by senior counsel at the earlier hearing. It was contended that existing restrictions on the practitioner’s practising certificate would adequately protect the public if the reasons for judgment and the orders of the Court were not published. It was further contended that in the event that the special leave application were successful, the impact on the practitioner’s reputation of the publication of this Court’s reasons and the order to strike off would be devastating.
The Board opposed the application for suppression. The Board argued that there was no basis for a suppression order under either the inherent jurisdiction of the Court or section 69A of the Evidence Act 1929 (SA). The Board contended that there was no utility in suppressing the Court’s reasons or orders as extensive information on the practitioner’s conduct had already been published in the reasons of Debelle J in Moyes & Anor v J & L Developments Pty Ltd & Anor (No 2),[5] in the reasons of the Tribunal and in the two earlier judgments of this Court.[6]
[5] Moyes & Anor v J & L Developments Pty Ltd & Anor (No 2) [2007] SASC 261.
[6] Viscariello v Legal Practitioners Conduct Board [2012] SASCFC 147; Viscariello v Legal Practitioners Conduct Board (No 2) [2013] SASCFC 27.
It is a general principle that there is a prima facie rule of open justice in the courtroom.[7] Courts have, however, recognised that there are exceptions to this general principle.[8] As Deane J observed in Australian Broadcasting Commission v Parish:[9]
… Damage and hardship to the individual from the working of legal processes can only be justified if they are warranted by countervailing benefit, or avoidance of prejudice, to the general administration of justice or by the legitimate claims and expectations of other individuals. When not so warranted, such damage or hardship is to the overall prejudice of the administration of justice.
[7]    Australian Broadcasting Commission v Parish (1980) 43 FLR 129, 157; see also Minter Ellison (A Firm) & Anor v Raneberg [2011] SASC 159.
[8]    See Scott v Scott [1913] AC 417, 437-438; Attorney-General v Leveller Magazine Ltd [1979] AC 440, 449-450.
[9]    Australian Broadcasting Commission v Parish (1980) 43 FLR 129, 158.
Determining whether a suppression order ought to be made involves a balancing process, which requires the Court to have regard to a number of factors unique to the particular case.[10]
[10] Australian Broadcasting Commission v Parish (1980) 43 FLR 129, 158.
The High Court in Hogan v Hinch[11] considered the open court principle. French CJ addressed the topic and reviewed relevant authorities from common law jurisdictions. His Honour observed:[12]
An essential characteristic of courts is that they sit in public. That principle is a means to an end, and not an end in itself. Its rationale is the benefit that flows from subjecting court proceedings to public and professional scrutiny. It is also critical to the maintenance of public confidence in the courts. Under the Constitution courts capable of exercising the judicial power of the Commonwealth must at all times be and appear to be independent and impartial tribunals. The open-court principle serves to maintain that standard. However, it is not absolute.
It has long been accepted at common law that the application of the open justice principle may be limited in the exercise of a superior court's inherent jurisdiction or an inferior court's implied powers. This may be done where it is necessary to secure the proper administration of justice. In a proceeding involving a secret technical process, a public hearing of evidence of the secret process could "cause an entire destruction of the whole matter in dispute". Similar considerations inform restrictions on the disclosure in open court of evidence in an action for injunctive relief against an anticipated breach of confidence. In the prosecution of a blackmailer, the name of the blackmailer's victim, called as a prosecution witness, may be suppressed because of the "keen public interest in getting blackmailers convicted and sentenced" and the difficulties that may be encountered in getting complainants to come forward "unless they are given this kind of protection". So too, in particular circumstances, may the name of a police informant or the identity of an undercover police officer. The categories of case are not closed, although they will not lightly be extended. Where "exceptional and compelling considerations going to national security" require that the confidentiality of certain materials be preserved, a departure from the ordinary open justice principle may be justified. The character of the proceedings and the nature of the function conferred upon the court may also qualify the application of the open-court principle. The jurisdiction of courts in relation to wards of the State and mentally ill people was historically an exception to the general rule that proceedings should be held in public because the jurisdiction exercised in such cases was "parental and administrative, and the disposal of controverted questions ... an incident only in the jurisdiction". Proceedings not "in the ordinary course of litigation", such as applications for leave to appeal, can also be determined without a public hearing.
It is a common law corollary of the open-court principle that, absent any restriction ordered by the court, anybody may publish a fair and accurate report of the proceedings, including the names of the parties and witnesses, and the evidence, testimonial, documentary or physical, that has been given in the proceedings.
[Footnotes omitted.]
[11] Hogan v Hinch (2011) 243 CLR 506.
[12] Hogan v Hinch (2011) 243 CLR 506, [20]-[22]; see discussion in Minter Ellison (A Firm) & Anor v Raneberg [2011] SASC 159, [27].
The inherent jurisdiction of the Court has been complemented by the enactment of Part 8 of the Evidence Act. Section 69A concerns the Court’s powers to make a suppression order and relevantly provides:
(1)Where a court is satisfied that a suppression order should be made—
(a)     to prevent prejudice to the proper administration of justice; or
(b)     to prevent undue hardship—
(i)to an alleged victim of crime; or
(ii)to a witness or potential witness in civil or criminal proceedings who is not a party to those proceedings; or
(iii)to a child,
the court may, subject to this section, make such an order.
(2)If a court is considering whether to make a suppression order (other than an interim suppression order), the court—
(a)     must recognise that a primary objective in the administration of justice is to safeguard the public interest in open justice and the consequential right of the news media to publish information relating to court proceedings; and
(b)     may only make a suppression order if satisfied that special circumstances exist giving rise to a sufficiently serious threat of prejudice to the proper administration of justice, or undue hardship, to justify the making of the order in the particular case.
…
The history of these proceedings strongly militates against the making of any order for suppression. The reasons for judgment of Debelle J in Moyes & Anor v J & L Developments Pty Ltd & Anor (No 2)[13] and the judgments of this Court dismissing the practitioner’s appeal against the Tribunal’s findings[14] and his application to reopen that appeal[15] have all been published. This Court was informed that the findings of the Tribunal have also been published. No application for suppression had been made at any time prior to the present application. In these circumstances, it is difficult to understand how any real prejudice could arise from the publication of our judgment on the strike off application.
[13] Moyes & Anor v J & L Developments Pty Ltd & Anor (No 2) [2007] SASC 261.
[14] Viscariello v Legal Practitioners Conduct Board [2012] SASCFC 147.
[15] Viscariello v Legal Practitioners Conduct Board (No 2) [2013] SASCFC 27.
In any event, we consider that there is a strong public interest in the publication of the reasons for making an order removing the name of the practitioner from the roll of legal practitioners. The public has a genuine interest in being aware of such orders as soon as they are made. French CJ in Hogan v Hinch[16] discussed the circumstances in which a private interest might outweigh the public interest in open justice. In the present proceeding, none of those circumstances assist the practitioner’s application.
[16] Hogan v Hinch (2011) 243 CLR 506.
Application for a Stay
The practitioner pursued an application for a stay of the within proceeding pending the final hearing and determination of the practitioner’s application for special leave to appeal against the orders of the Full Court dismissing the practitioner’s appeal and the application to reopen the appeal and, if special leave is granted, pending the determination of the appeal by the High Court.
Counsel for the practitioner accepted that the refusal of a grant of a stay would not render the practitioner’s rights nugatory. However, it was pointed out that the application for special leave had been issued and that the practitioner would remain bound by the restrictions on his practising certificate. Those restrictions include advice being given to all clients of the existence of the present proceeding. It was said that the public was adequately protected by these restrictions. The Court was advised that the application for special leave was likely to be heard before the end of the year and it was contended that the detriment to the practitioner if the orders were not stayed outweighed any risk to the public in the event that the practitioner were permitted to continue to practise.
Counsel for the Board drew attention to several authorities addressing the circumstances in which a stay may be granted pending special leave.[17] The Court was taken to the judgment of Brennan J in Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited where his Honour observed:[18]
The jurisdiction to grant a stay in the present case depends on whether a stay is necessary to preserve the subject-matter of the litigation. If an application for special leave to appeal would be futile unless a stay is granted, the jurisdiction arises. …
…
A stay to preserve the subject-matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted. If an order for a stay is made, the respondent is kept out of the benefit of the order of the court in which the matter is pending until the hearing of the application for special leave to appeal. …
…
When an application for special leave to appeal is made to this Court, a jurisdiction to stay may be exercised by the court below and it is to that court — the court in which the matter is pending and which is familiar with the matter — that an application to stay should first be made. …
In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court's discretion. In each case when the Court is satisfied a stay is required to preserve the subject-matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.
[17] Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited (1986) 161 CLR 681; Edelsten v Ward (No 2) (1988) 63 ALJR 346; Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460; 90 LGERA 126.
[18] Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited (1986) 161 CLR 681, 683, 684, 685.
Attention was also drawn to Brennan J’s later judgment in Edelsten v Ward (No 2) where his Honour observed:[19]
I might add that, even if I were satisfied that the jurisdiction of this Court attached, and that it would be appropriate to consider the exercise of the inherent jurisdiction, nothing that Mr Sweeney has said would satisfy me that the prospects of obtaining special leave to appeal from the interlocutory orders are so substantial or that the damage is so irreversible that the inherent power should be exercised to stay the order of the Tribunal in accordance with its terms. Consequently the application is refused.
[19] Edelsten v Ward (No 2) (1988) 63 ALJR 346, 347.
It is also convenient to refer to the decision of Kirby J in Bryant v Commonwealth Bank of Australia where his Honour addressed the principles to be applied when considering an application for a stay pending an application for special leave:[20]
[20] Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460, 463-5.
This is not the occasion for an exhaustive review of the principles governing applications such as the present. It is enough that a few of the well-known, and regularly applied, principles should be recalled:
(1)In an application for a stay, adjunct to an application for special leave to appeal, it is necessary to consider the applicant's prospects of success in gaining special leave. But that consideration will not pre-empt the separate determination of that issue which is left to the Court, differently constituted, usually with a fuller understanding of the issues involved and with the benefit (typically) of more detailed written, and (usually) more focused oral, submissions. A decision on a stay application should not become an occasion for a detailed analysis of the issues that will arise in the special leave application and, if granted special leave, the appeal. Necessarily, the evaluation of the prospects of success will involve a judicial impression. But it is one that does not pre-determine, one way or the other, the substantive application;
…
(4)In the High Court, the old rule of stringency continues largely to be maintained, with particular force where no grant of special leave to appeal has yet been secured. There are obvious reasons for a measure of greater stringency at this point. Ordinarily, the case will have proceeded through at least two tiers of the judicial process. The would-be appellant's arguments will have been rejected by the court whose orders are the subject of the special leave application. Only a relatively small proportion of the applications for special leave succeed. To succeed, something more than legal or factual error must usually be shown. These are reasons for maintaining a higher standard in this Court for the provision of a stay than would now usually be imposed by other Australian appellate courts in respect of invocations of their jurisdiction;
(5)The expression of the stringent standard, and a description of some of the matters to be taken into account where a stay is sought before a grant of special leave, may be found in numerous reported and unreported decisions of this Court. Repeatedly, the Court has emphasised that the jurisdiction to grant a stay is exercised only in very exceptional circumstances. It is "extraordinary". …
…
(6)In the exercise of the jurisdiction to provide a stay, it has often been emphasised that cases involving a stay of the operation of the criminal law or of laws designed to protect the public (eg deregistration of a professional lawyer or medical practitioner) are in a class different from cases involving no more than the suspension of the operation of orders affecting two private litigants only. Different considerations also arise where affirmative orders are required to protect the applicant's interests, as distinct from a simple order postponing the operation of the orders challenged by the appellate process. In cataloguing, for this purpose, an order under the Act sequestrating the estate of a person found bankrupt, it is clear that the status of the bankrupt is affected. But so are, potentially, the interests of third parties. So too is the interest of the community. It would therefore be a mistake to approach the present application as if the only interests affected by its outcome were those of the applicant and the respondent. Also to be kept in mind are the interests of other creditors, particularly unsecured creditors, and of the community which has its own concerns in the due administration of the Act in respect of the estate of persons found to be bankrupt; and
(7)The suggestion, in Jennings, that applications for a stay should ordinarily be made first to "the court in which the matter is pending and which is familiar with the matter", was not complied with in this case. Although the applicant failed to make an application for a stay to the full Federal Court, little weight should be attached to that consideration, given that he is not legally represented and was unfamiliar with the guidelines in Jennings. Those guidelines have encouraged a new procedure designed to reduce the burden on this Court of applications such as the present.
[Footnotes omitted.]

In the within proceeding, the Board submitted that special leave is unlikely to be granted to the practitioner and that it was in the public interest that the orders of this Court not be stayed. It was pointed out that counsel for the practitioner had conceded that the refusal of a stay would not render the practitioner’s rights nugatory.
It is to be recalled that the findings made against the practitioner include a finding that he gave dishonest evidence before Debelle J in Moyes & Anor v J & L Developments Pty Ltd & Anor (No 2).[21]The Tribunal found that the evidence was given dishonestly and, further, that the practitioner gave dishonest evidence before the Tribunal. The practitioner’s appeal against the Tribunal’s findings, including the finding of dishonesty, was dismissed by the Full Court.
[21] Moyes & Anor v J & L Developments Pty Ltd & Anor (No 2) [2007] SASC 261.
During the application to reopen the appeal, the practitioner fundamentally changed position. As his counsel frankly acknowledged, complaints were advanced for the first time concerning the nature of the Tribunal’s process and the relevance and weight to be given to affidavit evidence tendered before the Tribunal from the then domestic partner of the practitioner. These matters are canvassed fully in our reasons for refusing the application of the practitioner to reopen the appeal.[22] We consider that, in these circumstances, it is unlikely that the practitioner will be successful in his application to obtain special leave.
[22] Viscariello v Legal Practitioners Conduct Board (No 2) [2013] SASCFC 27, [12]-[33].
We consider it relevant that counsel for the practitioner accepted that his rights would not be rendered nugatory in the event of a refusal of a stay. We also consider it relevant that there is a strong public interest in the order of the Court removing the practitioner’s name from the roll of practitioners not being stayed. The order is made following the finding of a Judge of this Court, a finding of the Tribunal and the dismissal of the practitioner’s appeal against the Tribunal’s finding. It is also to be borne in mind that there was another finding of professional misconduct by the Tribunal quite apart from the finding concerning the practitioner’s dishonesty. In our view, there are compelling reasons to refuse the practitioner’s application for a stay.
An Interim Stay
The Court was informed that the practitioner intended to pursue his application for special leave with expedition and also that the practitioner wished to seek a stay from the High Court pending the hearing of the special leave application. We consider it appropriate to grant an interim stay for a period of 28 days to enable the practitioner to advance such application as he may be advised before a Judge of the High Court.
Conclusion
Having regard to the foregoing we made the orders referred to at the outset of these reasons.