Viscariello v Legal Practitioners Conduct Board (No 2)
[2013] SASCFC 27
•12 April 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
VISCARIELLO v LEGAL PRACTITIONERS CONDUCT BOARD (NO 2)
[2013] SASCFC 27
Reasons for Decision of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Blue)
12 April 2013
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - REOPENING APPEAL
Mr Viscariello was charged before the Legal Practitioners Disciplinary Tribunal with two counts of unprofessional conduct. The Tribunal found Mr Viscariello guilty on both counts.
Mr Viscariello appealed against the Tribunal’s findings, recommendation and order for costs. This Court dismissed Mr Viscariello’s appeal: Viscariello v Legal Practitioners Conduct Board [2012] SASCFC 147.
Mr Viscariello applied to re-open the appeal claiming that material errors of fact were made by this Court. His principal ground was that the Tribunal and this Court on appeal failed to give testimonial effect to affidavits of Mr Viscariello’s former partner which corroborated evidence he gave in the Tribunal.
Held (the Court):
1. It had not been argued before the Tribunal or this Court on appeal that Mr Viscariello’s partner’s affidavits should be given testimonial effect. This was a new point raised on the application to re-open. The submission that the affidavits should have been given testimonial effect is rejected (at [36]).
2. The application to re-open is dismissed (at [46]).
Corporations Act 2001 (Cth); Evidence Act 1929 (SA) ss 34C, 45B; Legal Practitioners Disciplinary Tribunal Rules 1983 (SA) r 11, referred to.
Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300; McAdam v Robertson [1999] SASC 169; (1999) 73 SASR 360; Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256, applied.
New South Wales Bar Association v Smith (Unreported, Supreme Court of New South Wales Court of Appeal, Samuels AP, Mahoney and Meagher JJA, 4 July 1991), discussed.
VISCARIELLO v LEGAL PRACTITIONERS CONDUCT BOARD (NO 2)
[2013] SASCFC 27Full Court: Gray, Sulan and Blue JJ
THE COURT
John Viscariello was charged before the Legal Practitioners Disciplinary Tribunal with two counts of unprofessional conduct. The Tribunal found Mr Viscariello guilty on both counts. The Tribunal recommended that disciplinary proceedings be brought in this Court. The Legal Practitioners Conduct Board has commenced those proceedings.
Mr Viscariello lodged an appeal against the Tribunal’s findings, recommendation and order for costs. On 21 December 2012, this Court dismissed Mr Viscariello’s appeal.[1]
[1] Viscariello v Legal Practitioners Conduct Board [2012] SASCFC 147.
On 23 January 2013, Mr Viscariello applied to re-open the appeal asserting that material errors of fact had been made by this Court. On 30 January 2013, this Court heard preliminary submissions on the application to re-open. We adjourned the application for hearing on 22 February 2013. We indicated that we would hear full argument on both the application to re-open and the appeal itself if it were re-opened before ruling on the application.
On the hearing on 22 February 2013, counsel for Mr Viscariello tendered an affidavit of Stephen McNamara sworn on 18 February 2013 and the exhibits to that affidavit. With the exception of effectively two exhibits, the tender was opposed. Counsel for the Board contended however that if the Court accepted the tender, his client wished to place a short affidavit before the Court. The affidavit has been filed. With the consent of both parties, regard was had to the tendered material during the hearing. The Court indicated that it would later rule on the tender.
The Jurisdiction to Re-open
In New South Wales Bar Association v Smith,[2] the New South Wales Court of Appeal entertained an application that it reconsider its decision on the basis that it had made an important factual finding based on an erroneous factual premise. The Court reconsidered the appeal on the correct factual basis, declined to receive further evidence and ultimately declined to alter its previous orders.[3] This decision was reversed by the High Court on appeal.[4] The joint judgment of Brennan, Dawson, Toohey and Gaudron JJ addressed the power to re-open a decision already made:[5]
It has long been the common law that a court may review, correct or alter its judgment at any time until its order has been perfected. … The power is discretionary and, although it exists up until the entry of judgment, it is one that is exercised having regard to the public interest in maintaining the finality of litigation. Thus, if reasons for judgment have been given, the power is only exercised if there is some matter calling for review. And there may be more or less reluctance to exercise the power depending on whether there is an avenue of appeal. It is important that it be understood that these considerations may tend against the re-opening of a case, but they are not matters which bear on the nature of the review to be undertaken once the case is re-opened, as this case was.
[Footnotes omitted.]
[2] New South Wales Bar Association v Smith (Unreported, Supreme Court of New South Wales Court of Appeal, Samuels AP, Mahoney and Meagher JJA, 4 July 1991).
[3] New South Wales Bar Association v Smith (Unreported, Supreme Court of New South Wales Court of Appeal, Samuels AP, Mahoney and Meagher JJA, 4 July 1991).
[4] Smith v New South Wales Bar Association (1992) 176 CLR 256.
[5] Smith v New South Wales Bar Association (1992) 176 CLR 256, 265.
In Autodesk Inc v Dyason (No 2),[6] an appeal was argued before the High Court. Judgment had been delivered, but the order of the Court had not been drawn up. The unsuccessful party then applied to the Court to vacate the judgment and for an order that the Court review or rehear three identified issues on the ground that, through no fault of the applicant, it had not been heard on those three issues. By majority, the application was dismissed. Two members of the Court addressed the power of the Court to re-open a decision in circumstances other than those before them. After approving the decision in Smith, Mason CJ observed:[7]
These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this Court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment. However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases.
[Emphasis added.]
Brennan J decided that there was:[8]
… no jurisdiction to set aside the judgment already pronounced merely because it is submitted by the unsuccessful party that, on further argument, the Court would be satisfied that it had reached the wrong conclusion in law.
…
The decision of this Court in the present case was not given in ignorance or forgetfulness of some statutory provision or of some critical fact. To entertain an application to reopen an appeal after judgment in order to consider further argument on an issue already decided would be to subvert the finality of litigation and to invite interminable arguments about the importance of the legal questions to be recanvassed and the correctness of the answers to those questions already given.
[Footnote omitted.]
[6] Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300.
[7] Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300, 302-303.
[8] Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300, 309-310.
This Court in McAdam v Robertson considered the power of the Court to re-open an appeal. Doyle CJ, with Bleby and Martin JJ agreeing, observed:[9]
In the light of those two decisions I proceed on the basis that the relevant principles are those stated by the majority in Smith. I consider that the observations of Mason CJ and Brennan J in Autodesk provide reliable guidance in relation to the exercise of the jurisdiction. I refer in particular to their observations that the jurisdiction is not exercised to enable a party to improve upon the argument that it has put, or merely to demonstrate that a decision is wrong. However, I proceed on the basis that a misapprehension in a significant respect as to the facts or the law may be a basis for the exercise of the jurisdiction, but in the light of what I have just said that cannot be a misapprehension which would be demonstrated only by persuading the Court to change its mind on something that it had already decided. I also proceed on the basis that the jurisdiction will not necessarily be exercised in the same way by an intermediate court of appeal and by a final court of appeal, although I do not attempt to identify any relevant distinctions here. I merely make the point that, in the case of the Full Court, the ability to apply to the High Court for special leave to appeal is a relevant matter that will tend to confine the exercise of the jurisdiction.
I therefore proceed on the basis that, the judgment not having been drawn up, the Full Court may review its decision. The power is to be exercised with great caution. The reasons for that are obvious. There is a strong public interest in the finality of litigation. Once a stage in the process of litigation has been completed, ordinarily it should not be revisited. Our system of adversary litigation, with the obligation that it imposes upon the parties to present their whole case and to present their best case, would begin to collapse if courts too readily entertained applications to reopen decisions given after a full hearing. The power can be exercised if some important principle of law has been overlooked, or if there is an apparent misapprehension as to a significant fact, but this is to be distinguished from enabling a party to attempt to persuade a court that it should change its view of a matter that it has considered and decided.
As the High Court said in Smith (at 265) the power is discretionary. It is not a power that lends itself to detailed categorisation, but nor is the discretion an ample one. Indeed, it is fairly closely confined.
[Emphasis added.]
[9] McAdam v Robertson (1999) 73 SASR 360, [38]-[40].
The Appeal
In our decision on the appeal published on 21 December 2012, we sustained the Tribunal’s conclusion that Mr Viscariello was guilty of unprofessional conduct. On the first count we concluded:[10]
[10] Viscariello v Legal Practitioners Conduct Board [2012] SASCFC 147, [122]-[123].
Conclusion – 2004 events
No error has been demonstrated in the Tribunal’s finding that Mr Viscariello made the June 2004 amendment to clause 20(b) of the Stirling trust deed for the purpose of attempting to defeat adverse costs orders against J & L Developments in the development approval litigation. No material error has been demonstrated in the reasoning of the Tribunal. The findings made by the Tribunal were open to it.
We would go further. On the evidence before the Tribunal, the conclusion was overwhelming that this was Mr Viscariello’s purpose. Mr Viscariello unequivocally admitted in his evidence before Debelle J on 1 December 2006 and his letter to the Board dated 23 November 2007 that the change to clause 20(b) of the trust deed was motivated by the forthcoming hearing of the appeal before Debelle J. His evidence in this respect before the Tribunal was both internally inconsistent and contrary to those earlier accounts in December 2006 and November 2007.
It was not in issue that the above conduct occurred whilst Mr Viscariello was acting as solicitor for J & L Developments and that if the allegations were established the conduct amounted to unprofessional conduct.
In regard to the second count of unprofessional conduct, we concluded:[11]
Mr Viscariello complained that the Tribunal erred in concluding that the evidence given by Mr Viscariello on 1 December 2006 was given falsely and dishonestly. This complaint has been addressed above. We repeat our rejection above.
It follows that, if the Tribunal did not err in reaching its conclusion that J & L Developments under the control of Mr Viscariello had not been acting in its own right in lodging the development application and in the subsequent appeals, the evidence which he gave to that effect on 1 December 2006 was knowingly false. As his evidence concerned his own state of mind as controller of J & L Developments, there is no room for any contention that his evidence was honest but mistaken.
The fundamental premise of Mr Viscariello’s evidence was that, in or before March 2003, he was concerned to ensure that the Stirling property be insulated from any claims if liabilities incurred by J & L Developments in the development of the house on the Stirling property, including any liabilities incurred by reason of the application for development approval and any subsequent litigation. His evidence was that he decided that J & L Developments would undertake the entirety of the development in its own right to insulate the Stirling property from any such liabilities. He decided that it would be agreed between J & L Developments in its own right and J & L Developments as trustee of the Stirling Trust that J & L Developments would develop the property on the basis that it would earn a profit margin in so doing. If Mr Viscariello had so decided, it would have been vital for him to document the decision and arrangements so that, in any future dispute, the position would not depend upon his mere assertion as to his intentions. To achieve the very purpose which he said he had, he would have prepared a document or documents and executed them on behalf of J & L Developments in its own right and J & L Developments as trustee of the Stirling Trust. He would have ensured that the existence and execution of the documents was verified by a third party such as submitting the documents to the Stamp Duties Office for stamping. He would also have decided what consideration was payable by the Stirling Trust to J & L Developments for undertaking the development and on what terms.
Mr Viscariello took none of these steps. His evidence was that he never determined the consideration that Stirling Trust would pay to J & L Developments. There never was any agreement between J & L Developments and the Stirling Trust for the payment of such consideration. It did not convene a meeting of directors of J & L Developments or prepare minutes of a meeting recording the decision or any agreement. His own conduct belies the evidence which he gave before Debelle J and the Tribunal.
Mr Viscariello’s subsequent conduct in mid-2004 in changing clause 20(b) of the Stirling trust deed, in mid-2006 in changing the trustee of the Stirling Trust and in September 2006 in deposing to the grounds of opposition to the charging order without mentioning J & L Developments having acted in its own right also belies his evidence.
No error has been demonstrated in the Tribunal’s finding that J & L Developments acted in its capacity as trustee of the Stirling Trust and not in its own right in lodging the application for development approval and in relation to the subsequent appeals. No material error has been demonstrated in the reasoning of the Tribunal. The findings made by the Tribunal were open to it.
We would go further. The evidence before the Tribunal was overwhelming. The conclusion that J & L Developments had not been acting in its own right, that Mr Viscariello belatedly advanced this contention in an attempt to defeat the charging orders being sought and that he gave false evidence before Debelle J when he said that J & L Developments had been acting in its own right was open and should in our view be confirmed.
[11] Viscariello v Legal Practitioners Conduct Board [2012] SASCFC 147, [172]-[178].
The Application to Re-open
In our reasons on the appeal, we upheld the Tribunal’s findings concerning the credibility of the witnesses. The Tribunal, having rejected Mr Viscariello’s testimony, concluded that in 2006 he had deliberately misled Debelle J when giving evidence. As noted above, we upheld the Tribunal’s finding that Mr Viscariello had given evidence that was false and dishonest.
The Credibility of Mr Viscariello
New counsel appeared for Mr Viscariello on the application to re-open. He submitted that the findings of the Tribunal concerning Mr Viscariello’s credibility were flawed and that this Court in its consideration of the appeal was in error in not so concluding. At the core of counsel’s submission was the assertion that there was evidence that had been overlooked that corroborated or supported Mr Viscariello’s account that J & L Developments had acted in its own right and not as trustee when seeking development approval in respect of the property at Stirling. That property, at that time, was trust property and J & L Developments was trustee.
Counsel submitted that the Tribunal had failed to give testimonial effect to unchallenged affidavit evidence of Ms Hamilton-Smith, Mr Viscariello’s then domestic partner. In two affidavits, Ms Hamilton-Smith had deposed to the capacity in which J & L Developments had acted when filing an appeal in the Environment, Resources and Development Court. The affidavits had been filed, one in the District Court, and the other in the Supreme Court, to support Mr Viscariello’s attempts to avoid orders being made against the trust assets.
Counsel submitted that this Court in its consideration of the appeal also failed to give testimonial effect to the unchallenged affidavit evidence and, further, that this Court, in doing so, had acted under a misunderstanding, namely that Ms Hamilton-Smith was not a director of J & L Developments at the relevant time. According to ASIC records, Ms Hamilton-Smith was a director of J & L Developments at the time of the filing of the appeal in the Environment, Resources and Development Court.
A Change of Position
On the hearing of the application to re-open, counsel for Mr Viscariello accepted that there was a fundamental change of position. It was acknowledged that no submission had been advanced before the Tribunal that the affidavits were tendered for their testimonial effect. Counsel accepted that no submission had been made to the Tribunal during addresses that the affidavit evidence of Ms Hamilton-Smith corroborated or supported the testimony of Mr Viscariello. Counsel also accepted that no submission had been made to this Court on the appeal that the Tribunal had erred in this respect. It was acknowledged that no submission was made on appeal that this Court should give the affidavits any testimonial effect or treat the affidavits as corroborating or supporting Mr Viscariello’s evidence. Counsel appearing on the application to re-open further acknowledged that senior counsel appearing on the appeal for Mr Viscariello had advised the Court that the affidavits were tendered as part of the history of the matter.
Counsel for the Board pointed out that the Tribunal was informed that the Board had been advised by Ms Hamilton-Smith that she had not signed either affidavit. It was emphasised that all appearing before the Tribunal understood that the affidavits, one tendered by each side, relevantly identical in their content, were not tendered for their testimonial effect. It was also pointed out that the Board’s application that Ms Hamilton-Smith be permitted to give evidence by video from Hong Kong was opposed by Mr Viscariello. Ultimately, the Tribunal made no finding that the affidavits of Ms Hamilton-Smith were not properly sworn.
The Misapprehension of Fact
The principal complaint advanced by Mr Viscariello was that this Court on the appeal made an error of fact in proceeding on the basis that the domestic partner of Mr Viscariello, Ms Hamilton-Smith, was not a director of J & L Developments in 2003 when an appeal was filed in the Environment, Resources and Development Court. This was an error as Ms Hamilton-Smith had been a director of the company, according to ASIC records, during the period 24 September 2002 to 1 June 2004.
As discussed in our reasons on the appeal, it was the Board’s case before the Tribunal that Mr Viscariello, in late September 2006, raised for the first time the suggestion that J & L Developments Pty Ltd had been acting in its own right in regard to the development application and the subsequent Court proceedings and not as trustee.
When the issue was raised before Debelle J in 2006, an attempt was made to tender the earlier referred to affidavit filed in the Supreme Court from Ms Hamilton-Smith dated 3 October 2006 in which she asserted that an appeal to the Environment, Resources and Development Court was filed by J & L Developments in its own right. She claimed to have this knowledge as a director of J & L Developments. The affidavit tendered before Debelle J contained the following paragraph:
The appeal to the Environment, Resources and Development Court bearing ERD Court Action Number 280 of 2003 against the Decision of The Adelaide Hills Council to refuse Provisional Development Plan Consent to Development Application No 473/316/03 for the proposed construction of a residential dwelling at 33 Birch Road, Stirling, 5152 in the State of South Australia (“ERD Court Action”) (“the Development Application”) (the “Appeal”) was filed by J&L Developments in its own right and not in its capacity as trustee for beneficial owner of the land, namely The Stirling Property Trust.
Debelle J excluded this and other paragraphs of the affidavit from receipt as evidence on the basis that Ms Hamilton-Smith was not a “director” at the relevant time – namely in 2003. All parties represented before Debelle J either accepted or did not contest that Ms Hamilton-Smith was not a “director” at that time. This was incorrect. As noted above, Ms Hamilton-Smith, according to the ASIC records, was a director of J & L Developments throughout 2003. All acted under the same misapprehension of fact. It is relevant to note that Mr Viscariello was present in court before Debelle J. This is the same error made by this Court in our reasons on the appeal.
It would appear that the error made by Debelle J may have resulted from statements appearing in an affidavit of Stephen McNamara sworn on 29 November 2006 in which he deposed that he had been informed by Mr Viscariello that Mr Nicolaou was a former director of J & L Developments and that Mr Viscariello and Mr Nicolaou were the directors of J & L Developments at the time of lodgement of the appeal against the decision of the Environment, Resources and Development Court granting development consent which resulted in the subsequent costs orders the subject of the charging order applications.
As earlier discussed, when the topic of the affidavits of Ms Hamilton-Smith was first raised with the Tribunal, the Board informed the Tribunal that it had been advised by Ms Hamilton-Smith that she had not signed either affidavit. This was said to be relevant to Mr Viscariello’s credit. At the time of the Tribunal hearing, Ms Hamilton-Smith was living permanently overseas. The Board applied to have Ms Hamilton-Smith’s evidence taken by video. Mr Viscariello opposed this application. Ultimately, the Tribunal made no finding that the affidavits of Ms Hamilton-Smith lacked authenticity. No findings adverse to the practitioner were made on this topic.
Again as earlier noted, when the proceedings against Mr Viscariello were before the Tribunal, the affidavit of Ms Hamilton-Smith filed in the Supreme Court and a relevantly identical affidavit of Ms Hamilton-Smith filed in the District Court were tendered. The Board tendered the District Court affidavit and Mr Viscariello tendered the Supreme Court affidavit. Neither affidavit was tendered for its testimonial effect. Both were tendered as a matter of history. Neither party during final submissions before the Tribunal suggested that the affidavits of Ms Hamilton-Smith were to have any testimonial effect. There was no suggestion that the affidavits corroborated or supported Mr Viscariello’s evidence. Unsurprisingly, the Tribunal did not have regard to the affidavits for their testimonial effect.
The rules of evidence apply to hearings before the Tribunal.[12] There was no suggestion before the Tribunal that the affidavits were admissible pursuant to either sections 34C or 45B of the Evidence Act 1929 (SA). There was no suggestion that the conditions for admissibility under those sections were met. If Mr Viscariello had tendered Ms Hamilton-Smith’s affidavits for their testimonial effect, there can be no doubt that their reception would have been opposed by the Board on multiple grounds.
[12] Legal Practitioners Disciplinary Tribunal Rules 1983 (SA) r 11. The Tribunal has power to order otherwise in certain circumstances, but there is no suggestion of any such order being made in this particular matter.
Mr Viscariello asserted in evidence before the Tribunal that the consideration of using J & L Developments in its own right as a developer first arose during a discussion between himself and his accounting adviser, Mr Nicolaou, prior to settlement on the Stirling property and that it was during that conversation that Mr Viscariello made the decision to use J & L Developments as a developer in its own right.
Mr Viscariello gave evidence of the steps taken by J & L Developments in seeking development approval. There had been a number of separate development applications. Proceedings were ultimately taken in the Environment, Resources and Development Court. Mr Viscariello gave evidence before Debelle J of his personal involvement in seeking development approval including his involvement in the appeal to the Environment, Resources and Development Court and in the Supreme Court.
Before the Tribunal, Mr Viscariello gave evidence to the same effect. He said that he engaged the planning consultant, MasterPlan, and caused the planning application to be lodged and, acting as a solicitor, he ran the file in relation to the Environment, Resources and Development Court appeal and subsequently the Supreme Court appeal. He appeared as junior counsel in the Environment, Resources and Development Court proceedings.
Neither Mr Viscariello nor Mr Nicolaou gave any evidence that Ms Hamilton-Smith had any involvement in the applications for development approvals or in the filing of any appeal to the Environment, Resources and Development Court. There was no evidence, documentary or otherwise, of Ms Hamilton-Smith having taken any role in J & L Developments’ activities with respect to the development application and subsequent court proceedings during the period that she was a director. Mr Nicolaou gave evidence to the effect that the active director of J & L Developments was Mr Viscariello.
We make these further points to underscore our conclusion that we do not consider Ms Hamilton-Smith’s affidavits corroborated and supported Mr Viscariello’s testimony. We point out that there are other unsatisfactory aspects to Mr Viscariello’s evidence, a number of which are referred to in our earlier reasons.
When the history is understood, the fact that Ms Hamilton-Smith was a director of J & L Developments at the time of the filing of the appeal to the Environment, Resources and Development Court is of no relevance. Whether she was a director or not, the affidavits were not tendered as corroborating or supporting the evidence of Mr Viscariello.
The question whether a trustee is acting in its own right or in its capacity as trustee involves considerations of law. The resolution of that question depends upon primary facts. Ms Hamilton-Smith’s affidavits do not depose to any primary facts from which such a conclusion may be drawn. The relevant paragraph is set out above. It is expressed in terms of a conclusion without any primary facts. As such, it did not establish the asserted conclusion.
As earlier noted, on the hearing of Mr Viscariello’s appeal to this Court, counsel who appeared for Mr Viscariello in the Tribunal appeared in this Court. A ground of appeal that raised a suggested failure of the Tribunal to have regard to the affidavits was not the subject of any submissions either written or oral. Nothing was put to support the ground of appeal.
In our reasons for judgment delivered on 21 December 2012, as earlier noted, we made the same error that had been made by all concerned in December 2006 before Debelle J. Returns lodged with ASIC disclose that Ms Hamilton-Smith was a director of J & L Developments at the time when the development application was lodged and the subsequent appeal to the Environment, Resources and Development Court was pursued in 2003. We accept that we made an error in concluding that Ms Hamilton-Smith was not a director at relevant times.
In accordance, however, with the observations of Doyle CJ in McAdam v Robertson,[13] it is important to investigate whether the error is of significance. It is neither a significant nor a material error if the conclusion is reached that the affidavits did not have testimonial effect. In that event, it would follow, as was conceded by counsel for Mr Viscariello, that the application on this ground to re-open would fail.
[13] McAdam v Robertson (1999) 73 SASR 360.
Having regard to the foregoing, we do not consider that any basis has been established, as a result of our misapprehension as to the periods during which Ms Hamilton-Smith was a director, to conclude that there was a significant or material misapprehension. We accept that we made an error, but do not consider that the error had any material consequences so as to justify a re-opening of the appeal.
A Further Change of Position - An Investigative Approach
When counsel appearing on the application to re-open was confronted with these difficulties, it was submitted for the first time that the Tribunal, as part of its investigative role, should have given the affidavits testimonial effect. It was then contended that this Court, on the appeal, should also have given the affidavits testimonial effect notwithstanding that both parties conducted their cases before the Tribunal on the appeal on the basis they were not to be given testimonial effect.
Counsel appearing for the Board, who had appeared throughout the proceedings, rejected these contentions. It was accepted that, in general terms, the Tribunal was involved in an investigation. However, it was pointed out that the proceeding before the Tribunal was conducted as an adversary proceeding. Both the Board and Mr Viscariello were represented by senior counsel. The proceeding before the Tribunal was treated as being comparable to the hearing of a complaint and conducted on the basis that the Board carried a high onus before findings of unprofessional conduct could be made. Attention was drawn to what is described as the Briginshaw[14] principle.
[14] Briginshaw v Briginshaw (1938) 60 CLR 336.
The suggestion that the Tribunal was under a duty to give the affidavits of Ms Hamilton-Smith testimonial effect because in part it was undertaking an investigative role is rejected. The position is that neither party sought that the affidavits be given any testimonial effect. They were before the Tribunal only as evidence of a historical event. Before this Court on the appeal, no submission was made that, because of the investigative role of the Tribunal, the affidavits were to have testimonial effect. This submission also represents a change of position. As earlier noted, the parties were represented by senior counsel before the Tribunal and it may be reasonably inferred that considered decisions were made with respect to the use to which the affidavits could be put. Also, as earlier noted, these matters were confirmed by the same counsel appearing on the appeal.
The Application to Re-open – Further Contentions
On the hearing of the application to re-open, Mr Viscariello advanced further contentions. These contentions were contained exclusively in the written summary of argument and were not the subject of oral submissions. His counsel accepted that these contentions were dependent on the primary contention concerning Ms Hamilton-Smith’s affidavits addressed above. They would only be relevant upon Mr Viscariello first establishing that the error concerning Ms Hamilton-Smith’s directorship of J & L Developments in 2003 was material to the disposition of the appeal.[15] We have earlier held that this error does not affect the disposition of the appeal.[16] The further contentions do not arise.
[15] Transcript, 30 January 2013, page 3/23-4/18.
[16] See [33].
We do not consider that any of the further contentions establish error on the part of this Court in its dismissal of Mr Viscariello’s appeal. Properly understood, each contention amounts to no more than an attempt to reargue matters already the subject of this Court’s ruling. We consider it appropriate to add the following further comments in respect of several of the contentions.
In our earlier reasons, we discuss the two changes made to the trust deed in 2004 – one to remove the trustee’s right of indemnity and the other to remove Ms Hamilton-Smith as an appointor. Counsel for Mr Viscariello submitted that errors occurred in our reasons when we discussed the motives for these changes. We reject this contention. The Tribunal had rejected any notion of a cross-over between the separate motives and the changes that were effected. Our earlier reasons demonstrate that we consider there were two separate changes to the trust deed with separate motives. We do not consider that there is any error on our part in the treatment of these issues.
In our earlier reasons, we discuss the Board’s contention that the removal of the right of indemnity against the trust assets, assuming it to be effective, would have been a voidable transaction under the provisions of the Corporations Act 2001 (Cth). This contention of the Board was advanced on appeal in response to a submission made by Mr Viscariello on the appeal that had not been advanced before the Tribunal. It is now complained that we did not, in our reasons, address the fact that the Board’s contention had not been the subject of findings by, the Tribunal. This complaint is plainly misconceived.
Counsel for Mr Viscariello sought to put a new argument, not advanced at the hearing of the appeal, that the removal of the right of indemnity, if effective, would not have been a voidable transaction because it would not have rendered J & L Developments insolvent. It was contended that J & L Developments was entitled in its own right to charge the trust a fee for work performed by J & L Developments in obtaining development plan consent. There is no foundation in the evidence before the Tribunal for this contention.
In our earlier reasons, we concluded that no agreement was entered into between J & L Developments in its own right and J & L Developments in its capacity as trustee to pay a fee for work performed by J & L Developments in obtaining development plan consent. We draw particular attention to the absence of any reference in the financial statements of J & L Developments, at relevant times, to any entitlement to a fee from the trust. The financial statements of the trust do not show, as a liability, a fee payable to J & L Developments.
Counsel for Mr Viscariello raised an issue concerning the Tribunal’s rejection of Mr Nicolaou as a credible witness and our conclusion that the Tribunal made no error in its assessment of his evidence. There were ample grounds for the Tribunal to find that Mr Nicolaou was not a credible witness. These are addressed in our earlier reasons. Nothing new was advanced in this respect on the application to re-open.
Counsel for Mr Viscariello also suggested that this Court on the appeal erred in its construction of a letter written by Mr Viscariello by the Board in 2007. The letter related to Mr Viscariello’s asserted motives in regard to the 2004 events. We reject the suggestion that we misconstrued the letter. We refer to our earlier reasons on this topic.
The McNamara Affidavit
The affidavit of Mr McNamara sworn on 18 February 2013 does not support the application in any material way. Mr McNamara has deposed to his involvement as a Commissioner of Affidavits in the taking of Ms Hamilton-Smith’s affidavits. As earlier noted, however, the Tribunal proceeded on the basis that the affidavits were authentic or at the very least had not been shown to lack authenticity. Mr McNamara also deposed to investigations made by the Board of his own conduct concerning the taking of Ms Hamilton-Smith’s affidavits. All of this may be accepted. However, the issue about the testimonial effect of the affidavits is not addressed by Mr McNamara. We reject the tender.
Conclusion
We decline to re-open the appeal. We decline to set aside our previous order dismissing the appeal. The application to re-open is dismissed.
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