Viscariello v Legal Practitioners Disciplinary Tribunal - [2015] SASC 116

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
VISCARIELLO v LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL
[2015] SASC 116
Judgment of The Honourable Justice Parker
7 August 2015
ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - APPLICATIONS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - EXTENSION OF TIME - GENERALLY
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT - GENERALLY
Mr Viscariello applied for permission to proceed with two judicial reviews of adverse findings by the Legal Practitioners Disciplinary Tribunal on the basis of failure to accord procedural fairness and jurisdictional error. Mr Viscariello also sought an extension of time for both judicial reviews. He further sought a stay of a costs order made against him by the Tribunal and that the matter be assigned a special classification by the Chief Justice. Mr Viscariello was found guilty of unprofessional conduct by the Tribunal for amending a trust deed to defeat a costs order and giving false evidence in the Supreme Court. On a second charge he was found guilty of unsatisfactory conduct in pursuing a claim without a reasonable basis. Mr Viscariello appealed to the Full Court against the finding by the Tribunal of unprofessional conduct on the first charge. The Full Court found that Mr Viscariello had engaged in unprofessional conduct and unsatisfactory conduct as charged, and was not a fit and proper person to be to a practitioner. Mr Viscariello applied to the High Court for special leave, which was refused.
Held (Parker J) dismissing all applications:
(1) In deciding whether to grant an extension of time the Court must consider the length of the delay, the reason for the delay, whether the applicant has prospects of success and the extent of any prejudice to the respondent.
(2) The grounds for review arose and time commenced to run when the Tribunal published its findings and made its recommendation and costs order. Mr Viscariello lodged his applications more than two years later, which was seriously out of time.
(3) The Court declined to exercise discretion to extend time for the lodgement of the two applications for judicial review as there was no reasonable basis upon which Mr Viscariello might establish a right to an order for judicial review.
(4) The Court refused permission to proceed with the two applications. The quashing of the Tribunal decision would be futile and serve no useful purpose because it would not affect in any way the orders made by the Full Court dismissing Mr Viscariello’s appeal, nor would it affect the order that he be struck off the roll of practitioners.
(5) The applications for the Tribunal’s costs order to be stayed and for the judicial review to be referred to the Chief Justice to be assigned a special classification must also be refused.
Legal Practitioners Act 1981 s 74(1), s 84(4), s 87(7), referred to.
Ferdinands v District Court [2010] SASC 265; Viscariello v Legal Practitioners Conduct Board (2014) SASC 53; Davies v Minister for Urban Development and Planning (2011) 109 SASR 518, applied.
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; Viscariello v Macks [2014] SASC 189, discussed.
Moyes & Anor v J & L Developments & Anor (No 2) [2007] SASC 261; Viscariello v Legal Practitioners Conduct Board [2012] SASCFC 147; Viscariello v Legal Practitioners Conduct Board (No 2) [2013] SASCFC 27; John Viscariello v Legal Practitioners Conduct Board [2013] HCASL 188; Legal Practitioners Conduct Board v Viscariello [2013] SASCFC 37; Annetts v McCann (1990) 170 CLR 596; Winen v District Court [2003] SASC 440; Weinal v Parsons (1994) 178 LSJS 48; Estate of the Late Sir Donald Bradman v Allens Arthur Robinson (2010) 107 SASR 1; Commonwealth v BIS Cleanaway Ltd (2007) 214 FLR 271; [2007] NSWSC 1075; Joy Hayes & Ors v Development Assessment Commission & Ors [1997] SASC 6155; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Parisienne Basket Shoes v Whyte (1938) 59 CLR 369, considered.

VISCARIELLO v LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL
[2015] SASC 116
Civil: Application for Judicial Review

PARKER J: On 30 May 2014 and on 30 June 2014, Mr Viscariello applied for permission to proceed with two applications for judicial review. Because the applications were made prior to the amendments to the Supreme Court Civil Rules 2006 that commenced operation on 1 October 2014,[1] Mr Viscariello requires permission to proceed under r 200(1) as it then stood. Under the former r 200(4) the Court may grant permission if it is satisfied that there is a reasonable basis on which the applicant might establish a right to an order for judicial review.
[1] Clause 3(b) of Amendment 26 to the Rules provides that the former Rules continue to apply to actions commenced before that date.
Mr Viscariello has also sought an extension of time in relation to both applications, although he contends that he has not exceeded the time limit of six months after the grounds for judicial review arose.[2]
[2] See the former r 200(2).
Further orders sought by Mr Viscariello are that the order for costs made against him by the Tribunal be stayed pending the outcome of the judicial review and that the matter be assigned a special classification by the Chief Justice under r 115.
The relief sought
In the application dated 30 May 2014, Mr Viscariello sought an order in the nature of certiorari but did not specify the decisions that he seeks to have quashed. He also sought a declaration that the following actions of the Legal Practitioners Disciplinary Tribunal (the Tribunal) are void and of no effect:
·the finding in the report dated 3 April 2012 that he was guilty of unprofessional conduct;
·the recommendation made by the Tribunal on 12 April 2012 that disciplinary proceedings be commenced against him in this Court; and
·the costs orders against him made on 12 April 2012.
Despite the drafting defects, it is clear that the order in the nature of certiorari sought by Mr Viscariello is directed at quashing the finding, recommendation and orders made by the Tribunal. The matter has proceeded on that basis.
Similar drafting defects appear in Mr Viscariello’s application of 30 June 2014. The action has proceeded on the basis that he seeks an order in the nature of certiorari to quash the following decisions of the Tribunal:
·the finding on 3 April 2012 that he was guilty of unsatisfactory conduct;
·the order made on 12 April 2012 that he be reprimanded; and
·the refusal on 12 April 2012 to make a costs order.
He has also sought a declaration that those actions of the Tribunal are void and of no effect
In accordance with the usual practice,[3] the Tribunal has given an undertaking to abide the decision of the Court and has taken no active role. Mr Michael Wait appeared for the Attorney-General as amicus curiae, while the plaintiff appeared in person.
[3] R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35.
Mr Viscariello has also lodged an application under r 242 in which he seeks that the Full Court reconsider his appeal against the decision of the Tribunal. At his request, the hearing of that application has been deferred pending the Court’s decision on the permission to proceed with the judicial review.
Background
On 20 August 2008 the Legal Practitioners Conduct Board laid a charge (the first charge) against Mr Viscariello alleging that he had been guilty of unprofessional conduct on two grounds. These grounds may be summarised as follows:
(a)Mr Viscariello amended a trust deed so as to remove the right of indemnity that J & L Developments Pty Ltd (JLD) held as trustee against the assets of the Stirling Property Trust (SPT). He had taken that action in an attempt to defeat an adverse costs order that might be made by this Court against JLD; and
(b)on 1 December 2006 Mr Viscariello gave false and dishonest evidence in this Court before Debelle J in Moyes & Anor v J & L Developments & Anor (No 2).[4] The evidence was that JLD has acted in its own right, and not as trustee of the SPT, in making an application for provisional development consent and in subsequent appeal proceedings in the Environment, Resources and Development (ERD) Court and in this Court.
[4] [2007] SASC 261.
The brief background to the first ground is that JLD owned certain land at Stirling. In 2003 it applied for development approval to build a house on that land for Mr Viscariello and his family. That application was refused by the local council. JLD then appealed to the ERD Court. That Court allowed the appeal and granted provisional development consent. Objectors to the development application appealed to this Court. Mr Viscariello acted as solicitor for JLD in the ERD Court and in this Court. The appeal was listed for hearing on 4 June 2004. On about 1 June 2004 Mr Viscariello amended the trust deed of the SPT to remove the right of indemnity held by JLD as trustee. The Board alleged that this action put the primary assets of the SPT out of the control of JLD so as to defeat a potential costs order.
On 2 January 2009 the Board laid another charge (the Fences Act charge) against Mr Viscariello alleging that between November 2004 and June 2005 he had acted unsatisfactorily in pursuing a claim for a contribution under the Fences Act 1975 on behalf of JLD in his capacity as its solicitor. The basis upon which his conduct was alleged to be unsatisfactory was that any competent practitioner would have concluded that the claim was not reasonably arguable.
The Tribunal proceedings
The hearing before the Tribunal extended over 33 hearing days. Mr Viscariello was represented by very experienced senior and junior counsel. The report of the Tribunal extends over 42 pages. The Tribunal found that it was satisfied to a very high degree of the correctness of the allegations that led to its finding that Mr Viscariello was guilty of unprofessional conduct.
Mr Viscariello admitted the facts relating to the Fences Act charge. He also admitted that those facts amounted to unsatisfactory conduct. Mr Viscariello specifically admitted that he considered that the application made to the Magistrates Court was arguable, but then failed to consider whether it was reasonably arguable under the Fences Act. The Tribunal concluded that any competent practitioner would have considered whether the application was reasonably arguable and would have concluded that it was not. On the basis of the agreed facts, the Tribunal found Mr Viscariello guilty of unsatisfactory conduct in relation to the Fences Act charge.
The appeals to the Full Court
Mr Viscariello appealed to the Full Court against the finding by the Tribunal of unprofessional conduct on the first charge. He did not appeal against the finding of unsatisfactory conduct on the Fences Act charge. On 21 December 2012 the Full Court dismissed his appeal.[5] The Full Court concluded that no error had been demonstrated in the following findings by the Tribunal:
·that Mr Viscariello had made the amendment to the SPT trust deed in 2004 for the purpose of attempting to defeat adverse costs orders against JLD;
·he had changed the trustee of the SPT in 2006 with the intent of attempting to defeat adverse costs orders against that company;
·JLD acted in its capacity as trustee and not in its own right in making the application for development consent and in the subsequent appeals; and
·Mr Viscariello gave false evidence before Debelle J when he said JLD had been acting in its own right.
[5] Viscariello v Legal Practitioners Conduct Board [2012] SASCFC 147.
The Full Court also independently considered the charges against Mr Viscariello and found that he had engaged in unprofessional conduct and unsatisfactory conduct as charged.
Mr Viscariello subsequently applied to the Full Court to reopen his appeal on the ground that the Tribunal had failed to give testimonial effect to the unchallenged affidavit evidence of his then domestic partner, Ms Tanya Hamilton-Smith. Ms Hamilton-Smith had deposed that JLD had acted in its own right rather than as trustee of the SPT. Those affidavits had been filed in the District Court and in this Court in support of attempts by Mr Viscariello to avoid orders being made against the assets of the SPT. It was also contended that the Full Court in its previous consideration of the matter had acted under the misunderstanding that Ms Hamilton-Smith had not been a director of JLD at the relevant time. The Full Court accepted that both it and the Tribunal had previously acted under that mistake. Permission to reopen was granted by the Full Court.[6]
[6] Viscariello v Legal Practitioners Conduct Board (No 2) [2013] SASCFC 27.
On the hearing of the application to reopen the appeal, senior counsel for Mr Viscariello (not being the practitioner who had appeared for him in the Tribunal) acknowledged that the latter had fundamentally changed his position.[7] Counsel accepted that no submission had been advanced before the Tribunal that the affidavits of Ms Hamilton-Smith had been tendered for their testimonial effect. No submission had been made to the Tribunal that the affidavits corroborated or supported the evidence of Mr Viscariello. It had also not been submitted previously to the Full Court that the Tribunal had erred in that respect. Counsel in the earlier appeal had informed the Full Court that the affidavits had been tendered as part of the history of the matter.
[7] Ibid at [14].
Notwithstanding the concessions made by senior counsel for Mr Viscariello, the Full Court considered whether or not the affidavits of Ms Hamilton-Smith corroborated and supported the evidence of Mr Viscariello. The Full Court concluded that they did not do so. The Full Court found that the affidavits merely asserted a legal conclusion without providing any primary facts from which that conclusion could be drawn. The Full Court also found that there were unsatisfactory aspects to Mr Viscariello’s evidence. A number of those matters had been referred to in the earlier reasons published by the Full Court.
The Full Court considered several further contentions advanced on behalf of Mr Viscariello in support of the application to reopen the appeal. The Full Court held that none of the further contentions established error and, that properly understood, they amounted to no more than an attempt to reargue matters that were already the subject of the ruling by the Full Court. The responses by the Full Court to the further contentions appear at paragraph [37] to paragraph [45] of its reasons. It is not necessary to set those matters out at length. On 12 April 2013 the Full Court dismissed the application to reopen the appeal.
On 21 May 2013 the Full Court found that Mr Viscariello was “not a fit and proper person to be entrusted with the important duties and responsibilities of a legal practitioner”. The Full Court ordered that his name be removed from the roll of practitioners.[8]
[8] Legal Practitioners Conduct Board v Viscariello [2013] SASCFC 37.
The special leave applications
Mr Viscariello then applied to the High Court for special leave to appeal the dismissal by the Full Court of his application to reopen the appeal. He also sought special leave to appeal from the order of the Full Court that his name be removed from the roll of legal practitioners. Both applications were dismissed by the High Court on 3 December 2013.[9] The High Court noted that Mr Viscariello was largely seeking to re-agitate the grounds rejected by the Full Court. The High Court held that no question of public importance suitable for the grant of special leave arose. The High Court further held that Mr Viscariello had not shown any error of principle in the approach of the Full Court to his application to reopen the appeal. The High Court also held that the application for special leave in relation to the removal of his name from the roll of practitioners was without any prospects of success and did not otherwise demonstrate any error in the decision of the Full Court.
[9] [2013] HCASL 188.
Submissions by the plaintiff
While I will not refer in detail to every point made by Mr Viscariello, I have taken account of all of the many matters and contentions referred to in his written submissions of 5 August 2014 and 11 March 2015, a letter of 25 pages addressed to the Crown Solicitor dated 6 February 2015,[10] and the detailed contentions and submissions included in his affidavits dated 30 May 2104,[11] 30 June 2014, 16 January 2015 and 11 March 2015, together with his detailed oral submissions. I will refer briefly to the main issues that Mr Viscariello has raised.
[10] Exhibited as JV 38 to his Third Affidavit dated 11 March 2015.
[11] Comprising 75 pages with a further 359 pages of exhibits.
The starting point for Mr Viscariello’s submission is that the threshold for permission to proceed with an application for judicial review is low. It is merely necessary to satisfy the court that the action is not such that it should be summarily dismissed. Permission to proceed should only be refused in clear cases. He submits that there is a real question to be tried and that he has a reasonable prospect of success.
Mr Viscariello contends that the Tribunal decision[12] was vitiated by jurisdictional error on multiple grounds. He places particular emphasis on matters relating to the two affidavits sworn by Ms Hamilton-Smith.
[12] By which I mean collectively the findings of unprofessional conduct, the recommendation for disciplinary action and the adverse costs order.
Mr Viscariello submits that an allegation was made without a sufficient basis before the Tribunal that Ms Hamilton-Smith had not sworn the relevant affidavits. The allegation lacked a proper basis as Ms Hamilton-Smith had not been called by the Board as a witness and two reports of handwriting experts were inconclusive. A suggestion that Mr Viscariello’s employer, Stephen McNamara, had improperly witnessed the affidavits had not been substantiated. By making, without a proper foundation, the allegation that Ms Hamilton-Smith had not made the affidavits, counsel for the Board had breached their professional conduct obligations under the Bar Rules. The Board had also breached its duties as a model litigant. He had been gravely prejudiced by this conduct.
Mr Viscariello referred to the fact the Tribunal, and initially also the Full Court, had mistakenly believed that Ms Hamilton-Smith was not a director of JLD at the relevant time. A mistake had also been made by the Tribunal as to the date of the affidavits. Mr Viscariello contended that the Full Court had perpetuated that error by describing the mistake as to the date as a typographical error. All of these matters should have been investigated by the Tribunal so that mistakes of fact were not made. Its alleged failure to do so gave rise to jurisdictional error.
Mr Viscariello also submitted that the errors and improper conduct relating to Ms Hamilton-Smith’s affidavits had adversely affected his credit and led to the rejection of his evidence. The affidavits had corroborated his evidence that JLD had acted in its own right rather than as trustee of the SPT. That evidence should have been accepted.
Mr Viscariello further submitted that when the Board formulated and laid the charge it was not entitled to rely on the finding by Debelle J that his evidence was not truthful. He contended that while s 87(7) of the Legal Practitioners Act permitted the Tribunal to adopt the findings made by a judge, the Board could not do so. The Board should have investigated the matter before laying a charge. Its alleged failure to do so was said to have caused the Tribunal to fall into jurisdictional error.

Related to that submission was a further contention by Mr Viscariello. This contention was based upon the findings by Kourakis CJ in Viscariello v Macks[13] that Mr Macks had improperly pursued the bankruptcy of Ms Hamilton-Smith for a collateral purpose in breach of his statutory duties as administrator under the Corporations Act, and had unreasonably continued to pursue litigation where it would be of no benefit to the relevant companies.
[13] [2014] SASC 189.
Mr Viscariello submitted that the findings by Kourakis CJ amounted to fresh evidence which was reliable and substantial and would have had a material bearing on determination of the relevant facts by the Tribunal. These findings by the Chief Justice corroborated and vindicated the evidence he had given to the Tribunal. More specifically, the findings confirmed the fears that he had referred to in his evidence before the Tribunal that caused him to amend the trust deed, replace Ms Hamilton-Smith as an appointor and have her resign as a director of JLD. Those steps were taken to reduce the risk that her bankruptcy would create a source of attack to be used by Mr Macks. On this basis he submitted that if the Tribunal had had available to it the findings in Viscariello v Macks, it would have concluded that there was a reasonable hypothesis consistent with his innocence.
Mr Viscariello also asserts, in light of the findings made by Kourakis CJ in Viscariello v Macks, that if the Tribunal had investigated as it was required to do under the Legal Practitioners Act, it would have established whether or not it was the practice amongst insolvency practitioners to assume the role of appointor of a trust upon the making of a sequestration order. If the Tribunal had made such investigations it is likely, if not certain, that it would not have rejected his evidence to the effect that his purpose in varying the SPT trust deed was not to defeat an adverse costs order. It would also have not rejected his evidence that JLD was acting in its own right rather than as trustee.
Mr Viscariello contended that the adverse observations made by Debelle J about his demeanour when he gave evidence were unsafe. He was not represented when he was called to give evidence without notice in an interlocutory hearing. Debelle J had failed to recognise that his presentation was adversely affected by a series of stressors in his life at that time rather than because he was not telling the truth.
Mr Viscariello also submitted that the findings by the Chief Justice in Viscariello v Macks verified one of the major sources of stress, ie that the liquidator, Peter Macks, was improperly seeking at that time to bankrupt Ms Hamilton-Smith.
Mr Viscariello also submitted that the Tribunal should have called an expert witness with expertise in the practices followed by liquidators before it rejected his evidence that his motive in varying the SPT trust deed was because of his concern that Mr Macks might seek to secure payment from trust assets by exercising the powers held by Ms Hamilton-Smith as appointor of the Trust.
A further submission by Mr Viscariello was that the Tribunal was not entitled to make findings contrary to his evidence without giving him notice of its preliminary view and giving him the opportunity to respond before it made adverse findings. In support of that submission he relied upon, amongst other authorities, the judgement of the High Court in Annetts v McCann.[14]
[14] (1990) 170 CLR 596.
Mr Viscariello also submitted that the Tribunal was not permitted to act upon its understanding that there was an agreement between him and the Board that the proceedings were to be conducted on an adversarial, rather than an inquisitorial, basis. Sections 74(1)(b) and 84(4) of the Legal Practitioners Act 1981 required the Tribunal to investigate the conduct which was the subject of the charges. Adversarial proceedings were not permitted. In any event, he contended there was no such agreement between him and the Board.
Mr Viscariello set out in his affidavit of 16 January 2015 a number of passages in the report of the Tribunal that were presented as direct quotations of evidence he gave before the Tribunal. In fact, the transcript of proceedings before the Tribunal reveals that the authors of the report had edited these passages.
Another error arose in the Tribunal’s findings where certain evidence was reported at paragraph [86] as having been given by Mr Viscariello. In fact, the particular evidence was given by another witness, a Mr Nick Nicolaou.
The Fences Act matter
Mr Viscariello also alleged that the Tribunal fell into jurisdictional error because of the failure to accord him procedural fairness in relation to the Fences Act matter. He asserted that the Tribunal should have given him notice that it was contemplating making a finding that a “competent practitioner” would have considered whether the Fences Act application was reasonably arguable before commencing that action.
As there was no evidence before the Tribunal on the latter question, Mr Viscariello has contended that its finding was based on its own opinion and/or speculation. He should have been allowed to address this issue before that matter was decided by the Tribunal. He has made the same complaint in relation to the finding by the Tribunal that a competent practitioner would have concluded that the application was not reasonably arguable.
A further basis for jurisdictional error alleged by Mr Viscariello in relation to the Fences Act matter was the alleged failure by the Tribunal to discharge its statutory duty under the Legal Practitioners Act to enquire into his conduct. He contended that the Tribunal was not entitled to rely on the admissions that he had made in the statement of agreed facts. Instead, the facts should have been established by conducting an investigation and calling witnesses.
Mr Viscariello contended that the preceding matters demonstrate that the Tribunal did not have jurisdiction to exercise any of its powers under the Legal Practitioners Act and that there is an error on the face of the record.[15]
[15] He did not specify whether he asserts an error of law or an error of fact.
Contrary to the submission made on behalf of the Attorney-General, Mr Viscariello contends that his applications are not futile. A finding in his favour in the judicial review applications, and the quashing of the Tribunal decisions, would provide a basis for him to seek to persuade the Full Court to reopen the matter and to set aside the decisions to confirm the findings of the Tribunal and to strike him from the roll of practitioners.
The submissions on behalf of the Attorney-General
Mr Wait on behalf of the Attorney-General submitted that permission to proceed with the action for judicial review should be refused on the grounds of futility, delay and lack of merit. There was no reasonable basis upon which Mr Viscariello might establish a right to an order for judicial review. Time should not be extended.
Consideration
Delay
In deciding whether to grant an extension of time the Court must consider the length of the delay, the reason for the delay, whether the applicant has prospects of success and the extent of any prejudice to the respondent.[16]
[16] Ferdinands v District Court [2010] SASC 265 at [18]–[19].
The applications in this matter were filed on 30 May 2014 and 30 June 2014 respectively. At that time r 200(2) required an action for judicial review to be commenced as soon as practicable after the date when the grounds for the review arose, and in any event, within 6 months after that date.
The orders sought by Mr Viscariello are directed at quashing decisions made by the Tribunal and not the later orders of the Full Court and of the High Court. I therefore reject his contention that time did not commence to run until the High Court rejected his application for special leave on 3 December 2013. The grounds for review arose when the Tribunal published its findings on 3 April 2012 and made its recommendation and costs order on 12 April 2012. Mr Viscariello lodged his applications more than two years later. They are seriously out of time.
The question is whether the Court should exercise its discretion to extend the time for the lodgement of Mr Viscariello’s applications. He submits that if he had applied for judicial review before he had lodged an appeal, or before his appeal was finally determined, he would have been met with the objection that he should not have applied for judicial review before his appeal rights were exhausted.[17] He also submits that, while the delay has not prejudiced the Legal Profession Conduct Commissioner,[18] he has suffered a fundamental injustice which has deprived him of the right to practise his chosen profession. For these reasons he submitted that time should be extended.
[17] Winen v District Court [2003] SASC 440; Weinal v Parsons (1994) 178 LSJS 48.
[18] The Commissioner assumed the powers and functions of the Board from 1 July 2014.
The submission by Mr Viscariello that time should be extended because he had pursued his appeal rights is not relevant to the Fences Act dispute. He did not appeal against the findings and orders of the Tribunal in relation to that matter. He took no action to challenge the adverse findings and orders for more than two years. He informed the Court that he had not done so because his attention was focused on the more serious finding by the Tribunal that led to his striking off. However, he now wishes to have this adverse finding set aside. If he succeeds in having the finding of unprofessional conduct that led to his striking off quashed, he does not regard it as acceptable to have the finding of unsatisfactory conduct left standing. That would continue to be a blemish on his reputation.
For the reasons at paragraph [67] below, I do not consider that there is a reasonable basis upon which Mr Viscariello might establish a right to an order for judicial review. I therefore decline to extend time for the lodgement of his two applications for judicial review.
The failure to act promptly
For completeness, I note that even if Mr Viscariello was correct that the six month time limit did not commence to run until the High Court refused his special leave application, he was still obliged to commence the action as soon as practicable. His application dated 30 May 2014 was made a few days short of six months after the High Court refused his application on 3 December 2013. The application of 30 June 2014 was made almost seven months after the High Court decision. It is not necessary for me to rule on this issue because of my view that he is plainly wrong as to when time started to run.
The test to be applied under r 200(4)
At the time Mr Viscariello lodged his application, r 200(4) provided that the Court may grant permission if it is satisfied that there is a reasonable basis on which the applicant might establish a right to an order to judicial review.
In Viscariello v Legal Practitioners Conduct Board, Nicholson J held that the phrase “reasonable basis” used in r 200(4) required the applicant to establish no more than that there was an arguable case or a prima facie matter of substance.[19] That imposes a low threshold analogous to that adopted when considering whether an application for summary judgment should be granted. That observation reflects the fact that the words “reasonable basis” in r 200(4) are also used in r 232 in relation to summary judgment applications.
[19] Viscariello v Legal Practitioners Conduct Board (2014) SASC 53 at [7]–[9].
Bleby J held in Davies v Minister for Urban Development and Planning that where a matter involves the exercise of a judicial discretion, an applicant for summary judgment has a particularly difficult task.[20] I agree with that view.
[20] (2011) 109 SASR 518 at [46].
Both of the remedies that Mr Viscariello seeks are discretionary, ie an order in the nature of certiorari and a declaration. The issue is whether I can be satisfied at this preliminary stage that if the matter went to trial there is no reasonable prospect that the trial judge would favourably exercise the discretion to grant relief.
The issue is not whether, on the information currently before the court, I would decline to grant the orders that Mr Viscariello seeks. So as to decide whether there is a reasonable prospect that a trial judge would grant relief I need to take into account not only the information currently before the Court but also whether there is a reasonable prospect that other evidence may be led at trial that may have some effect on the exercise of the discretion to refuse a remedy.[21] I proceed on that basis.
[21] Ibid at [48]; Estate of the Late Sir Donald Bradman v Allens Arthur Robinson (2010) 107 SASR 1, per Kourakis J (as he then was) at [30]–[31]; Commonwealth v BIS Cleanaway Ltd (2007) 214 FLR 271; [2007] NSWSC 1075 at [6].
The finality principle
With the limited exception of the reliance placed by Mr Viscariello upon the findings by Kourakis CJ in Viscariello v Macks (as to which see my observations at paragraph [60]), each of the matters that he seeks to pursue in the judicial review could have been agitated on the two occasions that his appeal was considered by the Full Court. His response to that suggestion is that an appeal and judicial review proceedings are like “apples and bananas”, ie they are quite different proceedings. He submitted that it was not possible in the appeal for him to pursue grounds that can only be pursued in judicial review proceedings, ie a denial of procedural fairness, ultra vires and jurisdictional error.
That response misses the point that an appeal to the Full Court from the Tribunal is by way of re-hearing. Mr Viscariello could have raised any mistake of law or fact that in his contention caused the Tribunal to fall into error or otherwise caused him injustice. The matters that he could properly have raised in the appeal were not limited to the essentially technical and procedural propositions that arise in judicial review proceedings.
Considerable reliance has been placed by Mr Viscariello upon the findings made by the Chief Justice in Viscariello v Macks. When properly analysed the position is simply that the Tribunal did not have available to it a later finding of fact made by this Court that was consistent with one of the factual assertions Mr Viscariello had made to the Tribunal. The Tribunal reached its decision about the motives for amending the trust deed after taking into account considerable other evidence. In my view, it is not reasonably arguable that the later finding by the Court in Viscariello v Macks led to a denial of procedural fairness by the Tribunal or any other form of jurisdictional error.
In my view, to continue the analogy with fruit employed by Mr Viscariello in submissions, he is clearly seeking to have a “second bite at the cherry”, contrary to the finality of litigation principle. That would be highly relevant to the exercise by the trial judge of the discretion to grant or refuse relief.
Anshun estoppel
In Joy Hayes & Ors v Development Assessment Commission & Ors,[22] Debelle J held that the principle in Port of Melbourne Authority v Anshun Pty Ltd[23] applies in judicial review. Thus, except in special circumstances, parties should put forward their whole case and will not be permitted to pursue in subsequent litigation matters that might have been pursued in the earlier action.
[22] [1997] SASC 6155 at [15]–[27].
[23] (1981) 147 CLR 589.
The Anshun estoppel principle only operates where the parties to the earlier and current litigation are the same. The present application by Mr Viscariello seeks relief against the Tribunal while the respondent to his appeal was the Board. In the present circumstances the change in respondent is rather technical and of no practical effect. It may therefore be arguable that the Anshun estoppel does not apply. Because the point was not fully developed in argument, and in view of my conclusion on the futility point (see paragraphs [66] to [68]), I do not need to decide this issue.
Abuse of process
It was also contended on behalf of the Attorney-General that the attempt by Mr Viscariello to have the Tribunal’s decision quashed may possibly be an abuse of process on the basis that he is, in substance, seeking to undermine the findings of the Full Court made in two appeal proceedings and where special leave was refused by the High Court.
The abuse of process submission was only made in passing by Mr Wait who relied primarily on the futility argument. While I consider that the abuse of process contention has very considerable force, it is unnecessary for me to decide that point.
Futility
A decision by the Court to quash the Tribunal’s findings, make a declaration of invalidity and remit the matter to a differently constituted Tribunal for re-hearing would be of no practical significance. That is because the setting aside of the Tribunal decision would not affect the orders made by the Full Court dismissing Mr Viscariello’s appeal nor would it affect the order that he be struck off the roll of practitioners. All of the orders made by the Full Court would remain binding. The Full Court reached its own independent findings on the issues concerning his conduct.
I consider that a trial judge would inevitably refuse to exercise the discretion to quash the decisions of the Tribunal because the setting aside of those decisions would serve no practical purpose. It would not affect in any way the orders made by the Full Court on two occasions dismissing the appeal from the Tribunal nor would it affect the striking off order. As I have noted at paragraph [61], the finality principle would also be a relevant consideration when the trial judge exercises his or her discretion as to the grant of a remedy.
While I say nothing about the likelihood of the r 242 application succeeding, it provides an avenue for Mr Viscariello to pursue his contention that he has suffered an injustice.
Procedural fairness, jurisdictional error and breach of statutory duty
The Tribunal hearing extended over many days and Mr Viscariello was represented by very experienced and capable senior and junior counsel. He conceded in his submissions to the Court that he had given evidence about the issues in respect of which he says he was denied a fair hearing. He also had the opportunity to call evidence before the Tribunal. His senior counsel also made submissions in relation to the issues that now concern him, or could have done so.
Any contention by Mr Viscariello that he was not accorded procedural fairness by the Tribunal could and should have been raised before the Full Court. That is equally true of his allegations of jurisdictional error and of a failure by the Tribunal to exercise its powers to investigate.
A number of the contentions advanced by Mr Viscariello are simply assertions that the Tribunal made errors of fact. While these alleged factual errors could have been pursued in his Full Court appeals, and several were, only errors of fact that affect the jurisdiction of the Tribunal can be taken into account in the judicial review proceedings.[24] The alleged errors all appear to relate to matters within the jurisdiction of the Tribunal.
[24] Parisienne Basket Shoes v Whyte (1938) 59 CLR 369, per Dixon J at 391.
I think it very unlikely that Mr Viscariello could establish at trial that the Tribunal fell into jurisdictional error, acted contrary to the Legal Practitioners Act or denied him procedural fairness. However, I need not decide those issues given my firm view that a trial judge would decline to grant any remedy on the grounds of futility.
Conclusion
I refuse Mr Viscariello an extension of time to seek permission to proceed with the two applications for judicial review filed on 30 May 2014 and 30 June 2014. To the extent that it is necessary in light of the refusal of an extension of time, I also refuse permission to proceed with those two applications. Due to those conclusions, his applications for the Tribunal’s costs order to be stayed and for the judicial review to be referred to the Chief Justice to be assigned a special classification must also be refused.