Viscariello v Legal Practitioners Disciplinary Tribunal - [2015] SASC 192

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
VISCARIELLO v LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL & ORS
[2015] SASC 192
Judgment of The Honourable Justice Bampton
8 December 2015
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY
ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - EXTENSION OF TIME - GENERALLY
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - IN GENERAL AND PRELIMINARY MATTERS
Mr Viscariello was found to have no standing to lay charges against the second and third Defendants in the Legal Practitioners Disciplinary Tribunal (the Tribunal). Mr Viscariello’s appeal as of right to a single Judge of the Supreme Court against the Tribunal’s decision was dismissed. Mr Viscariello’s appeal to the Full Court against the dismissal of his appeal is stayed pending his compliance with an order for security for costs. Mr Viscariello’s application for permission to appeal the security for costs order was refused by the Full Court.
On 16 May 2014 Mr Viscariello commenced an action for judicial review against the Tribunal’s decision. Permission to proceed pursuant to 6R 200 was granted by a Master.
Whether action is an abuse of process - whether extension of time to commence an action of judicial review and permission to proceed should be revoked.
Held:
1 The action for judicial review is an abuse of process.
2 The extension of time to commence the action for judicial review is revoked.
3 The grant of permission to proceed is revoked and the action is permanently stayed as an abuse of process.
Legal Practitioners Act 1981 (SA) s 82(2), 82(4); Supreme Court Civil Rules 2006 (SA) r 200; Limitation of Actions Act 1936 (SA) s 48, referred to.
Viscariello v Legal Practitioners Disciplinary Tribunal [2015] SASC 116, applied.
Viscariello v Livesey & Anor (2013) 286 LSJS 525, [2013] SASC 99; Viscariello v Livesey & Anor [2014] SASCFC 40; R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; Public Service Association of SA Inc v Industrial Relations Commission of SA (2012) 249 CLR 398; Re Glynn; Ex parte Royle [2003] WASCA 122; Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Williams v Spautz (1992) 174 CLR 509; Somasundaram v M Julius Melchior & Co [1989] 1 All ER 129; Viscariello v Livesey & Anor [2013] SASC 198, considered.

VISCARIELLO v LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL & ORS
[2015] SASC 192
Civil
BAMPTON J.
Introduction

Mr Viscariello was found to have no standing to lay charges in the Legal Practitioners Disciplinary Tribunal (the Tribunal) against Mr Livesey QC and Ms Flaherty. His appeal as of right to a single Judge of the Supreme Court against the Tribunal’s decision was dismissed. Mr Viscariello appealed that dismissal to the Full court. The prosecution of the Full Court appeal is stayed pending Mr Viscariello’s compliance with an order for security for costs. Mr Viscariello’s application for permission to appeal the security for costs order has been refused by the Full Court.
Simply put the only obstacle to Mr Viscariello’s appeal to the Full Court against the dismissal of his appeal is the non-payment by him of the sum ordered by way of security for costs.
This is not how Mr Viscariello sees it. Mr Viscariello considers he has done:
as much as appealing as I can, it’s not convenient, I shouldn’t have to pay security for costs on orders that were invalid and there was no jurisdiction for making those orders, it’s been a house of cards and I’m coming for a judicial review.
The action for judicial review commenced by Mr Viscariello against the decisions of the Tribunal, which are the subject of the stayed Full Court appeal, is a flagrant abuse of process. In my view permission to proceed should be revoked and the action permanently stayed as an abuse of process. My reasons for arriving at this view are as follows.
Background
Mr Viscariello alleges that Mr Livesey and Ms Flaherty engaged in unprofessional conduct arising out of their representation of a Ms George in the litigation involving his former domestic partner Ms Hamilton-Smith. The conduct charged against Mr Livesey is alleged to have occurred in the performance of his role as counsel instructed by the firm Minter Ellison. The conduct charged against Ms Flaherty, a solicitor with Minter Ellison, is alleged to have occurred in her role as instructing solicitor.
Mr Viscariello was a director of two companies: Bernsteen Pty Ltd (in liquidation) (Bernsteen) and Newmore Pty Ltd (in liquidation) (Newmore).
On 5 December 2001, an administrator was appointed to Bernsteen and Newmore and on 21 December 2001, they went into liquidation. Mr Macks who was appointed the Liquidator instructed Minter Ellison to act as his solicitors in the liquidation of Bernsteen and Newmore.
During the course of the liquidations, Mr Macks provided support to Ms George in relation to litigation involving Ms Hamilton-Smith and Minter Ellison was retained by Ms George.
On 7 June 2011 Mr Viscariello purported to lay charges of unprofessional conduct against Mr Livesey and Ms Flaherty to the Tribunal as a person claiming to be aggrieved by reason of their alleged professional misconduct pursuant to s 82(2)(d) of the Legal Practitioners Act 1981 (the LPA).
The charges alleged that Mr Livesey and Ms Flaherty misled or attempted to mislead courts by making statements, or allowing evidence to be adduced, which they knew to be false or incomplete.
The Legal Practitioners Disciplinary Tribunal proceedings[1]
[1] See transcript of proceedings in In The Matter of The Legal Practitioners Act 1981 Action No 9 of 2011 between John Viscariello and Mark Livesey QC and Action No 10 of 2011 between John Viscariello and Tyneil Flaherty and orders made 14 August 2012 and 10 October 2012.
Both Mr Livesey and Ms Flaherty made application to the Tribunal to dismiss the charges against them, for reasons including Mr Viscariello’s lack of standing.
At a directions hearing before the Tribunal on 5 September 2011, Mr Viscariello requested that the question of his standing be determined as a preliminary issue. At a further directions hearing on 4 October 2011, Mr Viscariello again requested that the issue of standing be determined before any further business was considered.
Two weeks later on 15 October 2011 Mr Viscariello again submitted to the Tribunal that the question of his standing was a threshold issue and conceded that the Tribunal had no jurisdiction to conduct an inquiry unless his standing was established.
On 7 and 8 February 2012 the Tribunal convened to hear the applications to dismiss the charges for reason of Mr Viscariello’s lack of standing. Mr Viscariello contended before the Tribunal that he was a person really and directly affected by the alleged conduct of Mr Livesey and Ms Flaherty.
The Tribunal delivered its reasons for dismissing the charges for reason of Mr Viscariello’s lack of standing on 14 August 2012 holding that s 82(2)(d) of the LPA required a complainant to be “really and directly” affected by the alleged conduct. The Tribunal found that Mr Viscariello’s grievances were too remote, did not arise “by reason of” the alleged conduct of Mr Livesey or Ms Flaherty, and that Mr Viscariello lacked standing.
On 10 October 2012 the Tribunal ordered that Mr Viscariello pay Mr Livesey and Ms Flaherty’s costs of the proceedings before it.
Mr Viscariello’s appeal to the Supreme Court
On 31 October 2012 Mr Viscariello filed a Notice of Appeal against the Tribunal’s decisions.
Justice White heard the appeal and on 27 June 2013 dismissed the appeal finding that the Tribunal was correct to find that Mr Viscariello lacked standing to bring the charges and was correct to dismiss the charges on the basis that it lacked jurisdiction to inquire into them under s 82(4).[2]
[2] Viscariello v Livesey & Anor [2013] SASC 99 at [105].
Mr Viscariello’s appeal to the Full Court
On 18 July 2013 Mr Viscariello filed a Notice of Appeal to the Full Court from the judgment of White J.
The order for security for costs
On 19 December 2013 Kelly J made an order, on Mr Livesey and Ms Flaherty’s applications, that the further prosecution of the appeal by Mr Viscariello to the Full Court be stayed until he has paid into Court the sum of $40,000 to secure Mr Livesey and Ms Flaherty’s costs of appeal.[3]
[3] Viscariello v Livesey & Anor [2013] SASC 198.
The application for permission to appeal to the Full Court against the order for security for costs
On 14 April 2014 the Full Court dismissed Mr Viscariello’s Application for Permission to Appeal to the Full Court against the interlocutory order made by Kelly J for security for costs.[4]
[4] Viscariello v Livesey & Anor [2014] SASCFC 40.
To date Mr Viscariello has not met the order for security and as such his appeal against the decision of White J is stayed.
The action for judicial review of the Legal Practitioners Disciplinary Tribunal’s decisions 14 August and 10 October 2012
On 16 May 2014 Mr Viscariello commenced this action for judicial review pursuant to r 200 of the Supreme Court Civil Rules 2006 (the SCR) naming the Tribunal as the defendant. Mr Viscariello also sought “to the extent necessary an order extending the time in which the plaintiff is able to bring his action for Judicial Review”. Rule 200(2) mandated that an action for judicial review had to be commenced within six months after the date when the grounds for review arose.
As Mr Viscariello brought the action prior to the amendments to the SCR, which came into effect on 1 October 2014, he required permission to proceed pursuant to 6R 200(1).[5] Under the repealed SCR the Court could grant permission if satisfied that there was a reasonable basis on which the applicant might establish a right to an order for judicial review.
[5] See Clause 3(b) of Amendment 26 to the SCR which states that the amendments made to r 200 apply only to proceedings commenced on or after 1 October 2014.
In accordance with 6R 200(1) on 19 May 2014 Mr Viscariello filed an ex‑parte interlocutory application, FDN 3, seeking permission to proceed further in the Court.
Mr Viscariello’s affidavit sworn 15 May 2014
In his affidavit filed in support of the action for judicial review, FDN 2, Mr Viscariello deposes that he brought the charges against Mr Livesey and Ms Flaherty because the Legal Practitioners Conduct Board (the Board) failed to carry out its statutory duty under the LPA to investigate complaints which he and Ms Hamilton-Smith had made to the Board about them. Mr Viscariello contends that the only power the Tribunal had under the LPA was to inquire into the conduct of Mr Livesey and Ms Flaherty under s 82(4) of the LPA. He states that the Tribunal did not have the power, authority or jurisdiction under the LPA to:
·make the finding that he was not a person claiming to be aggrieved and had no standing to lay the charges against the second and third defendants;
·make the orders on 14 August 2012 dismissing the charges; and
·make the costs orders on 10 October 2012.
Mr Viscariello argues that the question of law, namely the statutory interpretation of the meaning and application of s 82(2) of the LPA was not within the Tribunal’s power, authority or jurisdiction.[6]
[6] Affidavit of Mr Viscariello, sworn 15 May 2014, page 14.
He also refers to his appeal against the orders of the Tribunal being dismissed by White J in Viscariello v Livesey & Anor,[7] to the order for security for costs imposed by Kelly J, and his Application for Permission to Appeal against Kelly J’s decision which was refused by the Full Court in Viscariello v Livesey & Anor.[8]
[7] (2013) 286 LSJS 525, [2013] SASC 99.
[8] [2014] SASCFC 40.
He deposes that at no stage have Mr Livesey or Ms Flaherty been called upon by the Tribunal or this Court to answer the allegations the subject of the charges he made against them.
Mr Viscariello contends that he has exhausted all of his rights of appeal and all of his rights to apply for permission to appeal without success. He asserts that 14 April 2014 is the relevant date when the grounds for judicial review arose for the purposes of 6R 200(2).
He purports to “have no other equally convenient, beneficial, satisfactory or effectual remedy open to have the Decision and Orders of the Tribunal” quashed other than to seek judicial review.
The hearing before Judge Roder and the grant of permission to proceed
Mr Viscariello filed an Outline of Submissions, FDN 4, in support of his application for permission on 30 May 2014.
The ex-parte hearing took place before Judge Roder on 3 June 2014 and on 5 June 2014 Mr Viscariello filed a Supplementary Outline of Submissions, FDN5.
On 18 June 2014 Judge Roder granted Mr Viscariello permission to proceed. Upon giving permission, Judge Roder ordered that Mr Livesey and Ms Flaherty be joined as parties to the action.
The Second Summons naming Mr Livesey and Ms Flaherty as defendants was filed and served on 19 June 2014.
Extension of time
It is implicit that in granting permission to proceed with the action for judicial review Judge Roder granted an extension of time to commence the action to 16 May 2014 when the Summons was filed.
The action was commenced over a year and a half after the Tribunal determined that Mr Viscariello did not have standing.
The directions hearing 16 October 2014.
At the first directions hearing before me on 16 October 2014 I made orders requiring Mr Livesey and Ms Flaherty to file any responding affidavits to the action for judicial review by 30 October 2014. During the hearing Mr Viscariello intimated that he intended to file an application challenging the representation of Mr Livesey by Iles Selley and Mr Whitington QC and the representation of Ms Flaherty by Minter Ellison and Mr Duggan SC.
Mr Viscariello was ordered to make any application challenging the defendants’ representation by 6 November 2014.
In accordance with the usual practice,[9] counsel for the Tribunal said that the Tribunal would abide the decision of the Court and take no active role.
[9] R v Australian Broadcasting Tribunal; Ex-parte Hardiman (1980) 144 CLR 13, 35-36.
Counsel for Mr Livesey submitted that leave to proceed should never have been granted. I also expressed my concerns about the grant of permission to proceed.
The directions hearing 12 November 2014
On 12 November 2014 Mr Viscariello sought an extension of time within which to file and serve his proposed applications challenging the representation of Mr Livesey and Ms Flaherty. I made orders granting an extension of time to Friday 23 November 2014.
The application to restrain solicitors and counsel from acting
The foreshadowed application, FDN 16, was filed by Mr Viscariello on 28 November 2014.
The directions hearing 27 January 2015
On 27 January 2015 FDN 16 was set down for argument on 28 April 2015 and orders were made requiring the parties to file and serve written submissions.
The directions hearing 19 March 2015
The matter was called on for a directions hearing on 19 March 2015 at the request of Mr Viscariello who sought to adjourn the argument listed for 28 April 2015.
Mr Viscariello requested a lengthy adjournment in view of the fact that a manager had been appointed to the firm Commercial & General Law[10] and its principal, Mr McNamara, had been suspended from practicing. Mr Viscariello stated that this had caused great interference and disruption to him. Mr Viscariello did however confirm that Mr McNamara had never been the solicitor on the Court file. Mr Viscariello also claimed that there was much for him to do in the matter of Viscariello v Macks[11] and that the situation was just simply intolerable for him at that point in time.
[10] Pursuant to Schedule 1, clause 10(5) of the Legal Practitioners Act 1981 (SA).
[11] SCCIV-06-165.
It was during this hearing that I again raised the issue of whether this action for judicial review was an abuse of process. Mr Viscariello argued that the defendants could have appealed the permission granted by Judge Roder and, as they had not, all I needed to do was to consider whether there was any basis to vacate the argument date for FDN 16 or whether he needed to make written application.
I ordered that the issue of whether the action was an abuse of process be listed for argument on 30 April 2015 and ordered the filing of written submissions. I also indicated that Mr Livesey and Ms Flaherty were at liberty to make application for an order that the proceedings be dismissed or stayed as an abuse of process if so advised.
Mr Viscariello expressed his view that my raising the issue of abuse of process was “completely unfair”.
The application that I disqualify myself
By interlocutory application, FDN 18, filed 20 April 2015, Mr Viscariello applied to have the orders made on 19 March 2015 vacated and for me to recuse myself from taking any further part in the hearing and determination of the action. FDN 18 was made returnable for 30 April 2015, the date allocated for hearing submissions as to whether the action was an abuse of process.
By interlocutory application, FDN 21, filed 27 April 2015, Mr Livesey sought an order that the permission granted to Mr Viscariello by Judge Roder be revoked. In the alternative an order was sought dismissing the Second Summons or permanently staying the action.
By interlocutory application, FDN 23, filed 28 April 2015, Ms Flaherty also sought an order that the permission to proceed be revoked, or alternatively that the action be dismissed or permanently stayed on grounds that it is an abuse of process.
30 April 2015 hearing
At the hearing on 30 April 2015 I declined to recuse myself and I refused Mr Viscariello’s request for permission to appeal that refusal.
Mr Viscariello then sought an adjournment of the argument expressing his concern at the late service of FDNs 21 and 23 submitting that the applications prejudiced him as they raised for the first time that they sought an order for revocation of the permission granted by Judge Roder. Mr Viscariello also asserted that the matter of Viscariello v Macks was taking up much of his time. I noted however that Mr Viscariello is and was represented by counsel in that matter.
I also noted by reference to the transcript of an ex-parte hearing on 3 June 2014 the issue of abuse of process was alluded to by Judge Roder. Mr Viscariello said:[12]
Just so that I’m crystal clear about what your honour wants, the points that your honour wants me to address are specifically a suggestion that this might be an abuse of process by taking another route.
[12] T17.
Mr Viscariello took up the invitation of Judge Roder and filed supplementary submissions. He did not however address the issue of abuse in those submissions.
Mr Viscariello also acknowledged in submissions before Judge Roder that:
Once an action is brought then it’s free for the parties to then come along to court and say ‘Look, this action should be summarily dismissed because it doesn’t disclose any cause of action’ or whatever basis they feel is appropriate.[13]
[13] T5.
Despite Mr Viscariello’s protestations about unfairness and lack of notice there can be no doubt by reference to:
·paragraphs [11] and [12]-[13] of Judge Roder’s reasons dated 18 June 2014; and
·the correspondence with Mr Viscariello annexed to the affidavit, FDN 20, filed in support of FDN 21, and the affidavit, FDN 22, filed in support of FDN 23,
that Mr Viscariello was on notice that whether his action for judicial review was an abuse of process was very much a live issue.

Mr Viscariello had also been warned that I would hear argument on whether the action was an abuse of process on 30 April 2015.
However as FDN 21 had been filed three days before and FDN 23 two days before the argument date, I adjourned the hearing to 28 May 2015 to allow Mr Viscariello an opportunity to prepare.
Mr Viscariello’s application that FDN 21 and 23 be referred to the Full Court
By interlocutory application, FDN 25, Mr Viscariello sought orders that the applications FDN 21 and FDN 23 be referred to the Full Court constituted to hear the appeal in Viscariello v Macks. Alternatively, Mr Viscariello sought that the argument listed for 28 May 2015 be vacated and relisted on a convenient date not before 15 July 2015.
28 May 2015 hearing
On 28 May 2015, following my refusal to refer FDN 21 and FDN 23 to the Full Court, Mr Viscariello asserted he was not in a position to argue the matter and that he was at a disadvantage.
For the reasons discussed above I was satisfied Mr Viscariello was not prejudiced by the Court proceeding to hear the argument. The question of abuse of process has been a live issue in this action, if not from its inception, from the date of the hearing before Judge Roder. Accordingly I proceeded to hear argument over Mr Viscariello’s objection.
Argument on application to revoke permission or to stay proceedings
At the hearing on 28 May 2015 it was submitted on behalf of Mr Livesey and Ms Flaherty that the action has no prospect of success and is an abuse of process. It was submitted that the filing and the prosecution of the Second Summons represents an abuse of process of this Court as:
·he seeks relief in respect of the same issues which have already been the subject of an unsuccessful appeal; and
·the appeal to the Full Court is stayed pending payment into Court of the sum ordered by way of security for costs.
It was contended that by this action Mr Viscariello seeks once again to challenge the Tribunal’s decision; seeks an order which would conflict with the decision of White J; seeks to re-litigate the original claim and seeks to do so while an appeal to the Full Court is pending. It was further submitted that the action involves a collateral attack on the decision of White J that has the tendency to bring the administration of justice into disrepute and is brought for the sole or predominant purpose of avoiding the consequences of the security for costs order.
In the circumstances, it was argued that the action:
·represents an abuse of process and therefore should be struck out or permanently stayed;
·has never satisfied the criteria for permission to proceed under 6R 200 because:
·       it is unmeritorious in that it is premised upon the legally incorrect proposition that the Tribunal does not have power to consider and determine its own jurisdiction;
·       it seeks to pursue a claim which is in substance the same claim as is the subject of the pending substantive appeal;
·       it was commenced well outside the six-month statutory time limitation imposed by 6R 200(2) and no basis for an extension of time has or could be demonstrated; and
accordingly, should be the subject of an order revoking permission to proceed.
It was contended that Mr Viscariello’s assertion that he exhausted his rights of appeal on 14 April 2014 when the Full Court refused his appeal on the security for costs issue is wrong as he has an appeal against the decision of White J pending in the Full Court.[14] It was also submitted that the six month time limit to institute proceedings for judicial review commenced from the date of the decision of the Tribunal on 14 August 2012.
[14] T13.
Submissions of Mr Viscariello
Mr Viscariello declined to make submissions in support of his assertion that the action is not an abuse of process. He claimed he was not able to properly prepare for the argument due to the enormous pressure he was under in other proceedings. He did however, as referred to earlier in these reasons, make detailed oral and written submissions on his application for permission to proceed with judicial review before Judge Roder on 3 June 2014.
Mr Viscariello submitted to Judge Roder that the Tribunal simply did not have any jurisdiction to entertain Mr Livesey and Ms Flaherty’s applications for an order that he did not have standing. He argued that the jurisdiction of the Tribunal is enlivened once a charge is laid and then it can only dismiss a complaint as being frivolous, vexatious or an abuse. Otherwise, he argued, the Tribunal must inquire into the conduct of the said charges.
Mr Viscariello submitted that:
Once an action is brought then it’s free for the parties to then come along to Court and say ‘Look, this action should be summarily dismissed because it doesn’t disclose any cause of action’ or whatever basis they feel is appropriate.
Mr Viscariello was asked by Judge Roder how he can now go behind the decision of White J that the Tribunal was correct in dismissing the charges laid by him. Mr Viscariello submitted that the jurisdictional issue was not raised before White J and that White J did not have the benefit of all of the submissions and all of the evidence that was before the Tribunal. Judge Roder asked Mr Viscariello whether he thought it would be necessary, if permission were granted, for the matter to be determined by the Full Court “because otherwise, if you were to succeed in the proposed – judicial review proceedings we would be left with inconsistent judgments of single judges with respect to what the Tribunal was to do and … that’s not tolerable”. Mr Viscariello agreed with the Judge and asserted that the Full Court should have the benefit of all the evidence and submissions, which he asserted White J didn’t have.
Judge Roder later asked Mr Viscariello:
HIS HONOUR:           I follow your point but I’m now going ask you to persuade me that you’re not in seeking leave to proceed asking me to go beyond the stay order of the Full Court? If, in fact, your appeal against the decision of the tribunal has been dealt with by a single Judge, you’ve appealed to the Full Court, the Full Court has stayed the appeal. Again, where is the utility in you being allowed to proceed with judicial review to say that the tribunal was wrong in entertaining a point?
MR VISCARIELLO:    Okay, I’m glad your Honour’s asked that question so I can deal with it.
HIS HONOUR:           Yes.
MR VISCARIELLO:    The first question – the first point is that the Full Court’s not heard my appeal.
HIS HONOUR:           Correct.
MR VISCARIELLO:    It’s just dealing with the security for costs issue. The second point is that, as I said before, you can’t fix, you can’t – you can’t fix an error by saying ‘oh, well, you know, it’s been found – you’re now past that’. Either the tribunal had power or it didn’t have power. If it didn’t have power then it’s got to be, there’s got to be a declaration by the court saying it had no power to make that finding.
HIS HONOUR:           Isn’t that something that should be done in the proceedings that are presently stayed by the Full Court?
MR VISCARIELLO:    Well, I can’t, I can’t bring the action on because it’s been stayed, so. And the other –
HIS HONOUR:           Does that mean that this application is, in effect, a way of getting around the stay?
MR VISCAREILLO:    No, and that comes to my third point, your Honour. Now, my submissions don’t deal with this but I’m happy to do further submissions dealing with this issue. Your Honour would appreciate that when a person comes to court there’s a couple of avenues he can take if a person’s not satisfied about the judgment orders made by that particular judicial officer. There are statutory rights of appeal which I’ve pursued and then there’s the power for judicial review. Now, they are not mutually exclusive, they still, they stand parallel.
…
HIS HONOUR:           Yes, but you see, you haven’t exhausted your grounds of appeal, you simply haven’t complied with an order for, to provide security.
…
MR VISCARIELLO:    So my submission is, I shouldn’t – it’s not convenient for me now to have to pay $40,000 into court to press that appeal; right. This is – I’ve now hit a roadblock, I’ve now exhausted reasonable avenues to have that appeal heard or have my statutory rights of appeal pursued and now I’m entitled to go for judicial review. Now, some of the authorities say ‘Look, you haven’t exhausted those rights’ not that you have to, but if they’re statutory rights of appeal, your Honour might say ‘Look, I’m not going to entertain this application now, you bring it on prematurely, go off and exercise those rights and then once you’ve done that then come back’ because the judicial review process is completely different to an appeal process.
HIS HONOUR:           Correct.
MR VISCARIELO:      Your Honour would be aware. When you go on appeal the points go like that. You’ve got – there’s got to be errors of law and it’s very focussed; whereas a judicial review is a complete review of the whole process. So these, the procedures under the rules allow for that to happen. And as I said, I’m happy to provide you with written submissions. I have got the Halsbury’s of them, that say, look, some cases courts won’t allow you to come to court as I have today because you haven’t exercised it, they should say ‘Go and appeal it’. So there is – I now say I’ve done as much as appealing as I can, it’s not convenient, I shouldn’t have to pay security for costs on orders that were invalid and there was no jurisdiction for making those orders, it’s been a house of cards and I’m coming for a judicial review.
As referred to above, Judge Roder then asked Mr Viscariello to provide any further written submissions by the close of business the following day. Mr Viscariello clarified with Judge Roder that the further submissions should address “specifically a suggestion that this might be an abuse of process by taking another route”.
Mr Viscariello took up the invitation to provide further written submissions to the Court the following day. However rather than addressing the fundamental issue of whether the action is an abuse of process, Mr Viscariello submitted:[15]
·Mr Livesey QC and Ms Flaherty should be joined as defendants in the action;
·The findings and orders made by the Tribunal were vitiated by jurisdictional error and that White J’s judgment does not overcome the jurisdictional error made by the Tribunal;
·The parties cannot consent to the exercise of the jurisdiction;
·The existence of other avenues for statutory review does not prohibit an application for Judicial Review where Judicial Review is more appropriate and convenient;
·It is no longer convenient, beneficial, satisfactory or effectual for him “to press his rights of statutory appeal to the Full Court by being forced to pay the sum of $40,000”; and
·It is now more convenient, beneficial, satisfactory or effectual for him to apply for permission to proceed with an action for judicial review.
[15] FDN 5.
It should be noted that Judge Roder was not referred to authorities that would have made it clear that a statutory tribunal of limited jurisdiction such as the Tribunal must necessarily have power to decide whether it has jurisdiction.[16]
[16] See Public Service Association of SA Inc v Industrial Relations Commission of SA (2012) 249 CLR 398 at [31]-[34] and [55]-[58]; Re Glynn; Ex parte Royle [2003] WASCA 122, [5], [34].
Discussion
The Court has unlimited power over its own processes to prevent those processes being used for the purpose of injustice.[17]
[17] Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75, [27]-[28].
It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment.[18]
[18] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 603.
In Williams v Spautz,[19] Mason CJ, Dawson, Toohey and McHugh JJ cautioned that the power to grant a permanent stay could only be exercised in the most exceptional circumstances.
[19] (1992) 174 CLR 509, 529.
The history of the appeal to this Court from the decision of the Tribunal and the commencement of the action for judicial review immediately raises the fundamental question of whether this action is an abuse of process. Judge Roder put Mr Viscariello on notice as to this fundamental issue on 3 June 2014. At the first hearing before me in October 2014 the question of a challenge to the decision of Judge Roder was raised. Mr Livesey and Ms Flaherty have maintained that the action was an abuse of process.
An attempt to impugn the decision of White J
The orders Mr Viscariello seeks in this action necessarily involve an attack on the judgment of White J. Any decision that will impugn the decision of a court of competent jurisdiction is an abuse of process.[20] Mr Viscariello seeks orders that would, if made, conflict with the orders White J made in Viscariello v Livesey & Anor,[21] resulting in inconsistent judgments of single Judges of this Court based on the same facts and in which Mr Livesey and Ms Flaherty were parties.
[20] Somasundaram v M Julius Melchior & Co [1989] 1 All ER 129.
[21] [2013] SASC 99.
Mr Viscariello submitted before Judge Roder that “White J didn’t have the benefit of all the submissions, all the evidence”. This is an issue for the Full Court on appeal from the decision of White J. He also submitted that White J simply looked at the reasons of the Tribunal and said ‘yeah, they look okay’. Again, that is a matter for the Full Court.
Any argument that the Tribunal had no jurisdiction to decide its own jurisdiction has been the subject of an appeal to White J who upheld the Tribunal’s decision. Having regard to the transcript of proceedings before the Tribunal, rather than submitting that the Tribunal had no power to determine its jurisdiction, Mr Viscariello made submissions arguing for the proposition that the jurisdictional fact could be found by the Tribunal.[22]
[22] T16.
Justice White conducted a thorough examination of the expression “a person claiming to be aggrieved”[23] and found that: [24]
the Tribunal was correct to regard the expression ... as having the same meaning as “a person aggrieved” and to regard it as requiring the appellant to show that, objectively considered, he was a person really and directly affected by the conduct which he sought to charge against the respondents.
[23] Viscariello v Livesey & Anor [2013] SASC 99 at [39]-[64].
[24] Ibid at [64].
He then considered Mr Viscariello’s challenge to the Tribunal’s assessment of his standing on the basis of this understanding of s 82(2)(d) of the LPA,[25] concluding that the Tribunal was correct to dismiss the charges on the basis that it lacked jurisdiction to inquire into them under s 82(4) of the LPA.[26]
[25] Ibid at [65]-[104].
[26] Ibid at [105].
Justice White also dealt with the application to amend the charges before the Tribunal, which he refused,[27] and the application to adduce fresh evidence, which he also refused, partly due to Mr Viscariello’s “own failure to invoke interlocutory processes reasonably available to him before the Tribunal as a means of justifying his application to adduce fresh evidence”.[28]
[27] Ibid at [123].
[28] Ibid at [144].
An attempt to subvert the order for security for costs
In my view this action seeks to circumvent the order for security for costs. Mr Viscariello said in his written submissions before Judge Roder that “it is no longer convenient, beneficial, satisfactory or effectual” for him “to press his rights of statutory appeal to the Full Court”.
The appeal from White J is still before the Court pending payment of security. Mr Viscariello cannot now agitate the same claim in defiance of that order.
Mr Livesey and Ms Flaherty are required in this action to defend substantially the same case as was argued before White J. Mr Viscariello has failed to comply with the security for costs order and to prosecute his appeal against White J’s dismissal of his appeal.
Justice Kelly, in her judgment ordering security, concluded that Mr Viscariello did not have sufficient prospects of success on appeal from White J: [29]
In effect, the Judge completely endorsed the approach of the Tribunal. While minds may differ on a question of statutory construction, I consider that weight must be given to the fact that two bodies, one judicial and the other quasi-judicial, have spoken with one voice in this case. It is often convenient in any application seeking the leave or permission of the Court to determine whether the matter has sufficient prospects of success. For the purposes of the applications for security, I conclude that the appellant does not have sufficient prospects of success.
[29] Viscariello v Livesey & Anor [2013] SASC 198 at [57].
Justice Peek, with whom Parker J and I agreed, said in refusing permission to the security for costs order that: [30]
I consider that Mr Viscariello has not demonstrated that Kelly J’s assessment was not open to her on an interlocutory application of this sort. That being so, it is neither necessary, nor appropriate, to determine what assessment I would make as to prospects of success.
[30] Viscariello v Livesey & Anor [2014] SASCFC 40 at [24].
Whether the reason for bringing this action is to subvert the order for security for costs or an attempt to impugn the judgment of White J, or both, it is clear that it is an abuse of process.
The action for judicial review is out of time
Mr Viscariello commenced this action on 16 May 2014. As submitted by Mr Livesey and Ms Flaherty the action was commenced well outside the six month statutory time limitation imposed by 6R 200(2) and no basis for an extension of time has or could be demonstrated. Mr Viscariello argued that his time to commence the action for judicial review started from 14 April 2014 when the Full Court refused permission to appeal the security for costs order, not from when the Tribunal made its decision.
Like Parker J in Viscariello v Legal Practitioners Disciplinary Tribunal I find that the time to institute the action for review commences from the publication of the Tribunals’ findings.[31] The substantive findings were published 14 August 2012 and the costs order 10 October 2012.
[31] [2015] SASC 116 at [48].
As I am satisfied that the action is an abuse of process, there is no entitlement to an extension of time.
Conclusion
What Mr Viscariello seeks to do is go behind the judgment of White J whilst he has a pending appeal. He frankly admitted to Judge Roder that he is doing that because he is met with an order for security for costs to pay $40,000 and it is not convenient to him. Judge Roder plainly alerted him to the risk that that was an abuse.
It is clear that the action is an abuse of process. The proper avenue to agitate the issues contended by Mr Viscariello is the appeal from the decision of White J. I am satisfied that the exceptional circumstance that enlivens the Court’s power to stay proceedings as an abuse of process has been established.
The Court has a duty and power to protect its own processes which requires that I give effect to the findings I have made by permanently staying the action using the inherent jurisdiction of the Court.
I revoke the extension of time to commence this action implicitly granted by the orders made on 18 June 2014 and I revoke the grant of permission to proceed.
I permanently stay the action for judicial review commenced 16 May 2014 as an abuse of process