Viscariello v Legal Practitioners Disciplinary Tribunal (No 2) - [2016] SASC 15

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
VISCARIELLO v LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL & ORS (No 2)
[2016] SASC 15
Judgment of The Honourable Justice Bampton
16 February 2016
ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - COSTS
PROCEDURE - COSTS
The second and third defendants made application for costs on an indemnity basis after Mr Viscariello’s application for judicial review was permanently stayed as an abuse of process – whether sufficient prospects of success – whether action was brought in the public interest.
Held:
1. The second and third defendants to have their costs of action on an indemnity basis to be agreed or taxed by a Supreme Court Master.
Legal Practitioners Act 1981 (SA) s 82(2), s 82(4); Limitation of Actions Act 1936 (SA) s 48; Supreme Court Act 1935 (SA) s 40; Supreme Court Civil Rules 2006 (SA) r 200, r 263(1), r 264(5)(b), referred to.
Viscariello v Legal Practitioners Disciplinary Tribunal & Ors [2015] SASC 192; Casley-Smith v FS Evans & Sons Pty Ltd (No 6) (1989) 148 LSJS 483; Russo v Buck (No 2) [2007] SASC 157; Singleton v Macquarie Broadcasting Holdings Ltd (1991) 24 NSWLR 103; Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248; Flower and Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134; Sunburst Properties Pty Ltd v Agwater Pty Ltd (No 2) [2005] SASC 393; Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359; Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397; Karam v Palmone Shoes Pty Ltd [2012] VSCA 97; Quach v Health Care Complaints Commission (No 2) [2015] NSWCA 311; Viscariello v Livesey & Anor [2013] SASC 99; Viscariello v Livesey & Anor [2014] SASCFC 40; MyEnvironment Inc v VicForests [2012] VSC 111; Viscariello v Legal Practitioners Disciplinary Tribunal [2015] SASC 116, considered.

VISCARIELLO v LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL & ORS (No 2)
[2016] SASC 15
Civil: Application
BAMPTON J.

On 8 December 2015, I permanently stayed Mr Viscariello’s action for judicial review in which he had sought to review a decision of the Legal Practitioners Disciplinary Tribunal (the Tribunal).[1] The history of the matter is set out in my substantive judgment.[2] I found that the action was an abuse of process. Mr Viscariello sought to circumvent a security for costs order made by Kelly J,[3] and to attack the judgment of White J on appeal from the Tribunal.[4]
[1]    Viscariello v Legal Practitioners Disciplinary Tribunal & Ors [2015] SASC 192.
[2]    Viscariello v Legal Practitioners Disciplinary Tribunal & Ors [2015] SASC 192 at [1]-[25].
[3]    Viscariello v Legal Practitioners Disciplinary Tribunal & Ors [2015] SASC 192 at [86].
[4]    Viscariello v Legal Practitioners Disciplinary Tribunal & Ors [2015] SASC 192 at [80].
Upon judgment being delivered on 15 December 2015, the second and third defendants made applications for costs on an indemnity basis pursuant to r 264(5)(b) of the Supreme Court Civil Rules 2006 (SA). Mr Viscariello opposed the applications and submitted that the action for judicial review was brought in the public interest.
I ordered the second and third defendants to file written submissions within seven days and Mr Viscariello to file written submissions within seven days thereafter.
Submissions of the second defendant
The second defendant filed written submissions on 9 December 2015. The third defendant indicated by email dated 15 December 2015 that she would rely on the submissions of the second defendant in support of her application. No written submissions have been received from Mr Viscariello.
The second defendant submitted that special and unusual features of a case justify the exercise of the Court’s discretion to award costs to the successful party on an indemnity basis.[5]
[5] Casley-Smith v FS Evans & Sons Pty Ltd (No 6) (1989) 148 LSJS 483; Russo v Buck (No 2) [2007] SASC 157; Singleton v Macquarie Broadcasting Holdings Ltd (1991) 24 NSWLR 103.
It was submitted that although the categories of cases justifying an award of costs on an indemnity basis are not closed, a catalogue of circumstances which have been thought to warrant the exercise of the discretion is set out by Sheppard J in Colgate Palmolive Co v Cussons Pty Ltd.[6] The grounds include:
·the fact that the proceedings were commenced or continued for some ulterior motive or in wilful disregard of known facts or clearly established law; and
·the undue prolongation of a case by groundless contentions.
[6] (1993) 118 ALR 248 at 257.
It was submitted that an order for indemnity costs has frequently been held to be justified where the prosecution of the case by the unsuccessful party constitutes an abuse of process.[7]
[7] Flower and Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134; Sunburst Properties Pty Ltdv Agwater Pty Ltd (No 2) [2005] SASC 393; Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359.
It was further submitted that costs may be awarded on an indemnity basis where a party, properly advised, should have known that it had no chance of success.[8] The second defendant submitted that it should have been apparent to Mr Viscariello that the proceedings were unsustainable and would represent an abuse of process from the outset. Judge Roder specifically adverted to the potential for the action to be characterised as an abuse of process at the hearing of the ex-parte application.
[8] Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397.
The second defendant submitted that Mr Viscariello cited no authority to support his contention that the Tribunal lacked jurisdiction to determine its own jurisdiction and was clearly alive to the time limitation imposed by r 200(2) when commencing the action.
After being served with the proceedings, solicitors for the third defendant wrote to Mr Viscariello by letter dated 13 August 2014 putting him on notice that the third defendant viewed the proceedings as an abuse of process as Mr Viscariello was seeking to re-litigate the same issues ventilated in the appeal before White J. The letter states that Mr Viscariello’s assertion that s 82(4) of the Legal Practitioners Act 1981 (SA) imposed a free-standing obligation on the Tribunal to investigate complaints was argued before and rejected by White J.
The letter also rejects Mr Viscariello’s contention that any grounds for an order for judicial review arose on 14 April 2014. The third defendant states in the letter that Mr Viscariello’s appeal is without any merit and is liable to be struck out on the grounds that it is an abuse of process and vexatious.
Solicitors for the second defendant, by email dated 27 October 2014, put Mr Viscariello on notice that the application for judicial review would be resisted on numerous grounds including but not limited to:
It represents an abuse of process in that it is an improper attempt to circumvent the security order;
It is out of time and there is no basis for an extension;
You appealed from the impugned decision and thereby elected not to seek judicial review;
No error is disclosed because the Tribunal have power, authority and jurisdiction to determine if you had standing which was a jurisdictional threshold;
You willingly participated in the process of the Tribunal you now complain about and, in so doing, expressly acknowledged that your standing was a jurisdictional threshold which ought to be determined at the outset;
The effect of White J’s reasons is to have held that the Tribunal had power to determine its own jurisdiction and that its ruling was correct and therefore the issue is closed.
The second defendant submitted that Mr Viscariello was on notice that the proceedings were hopeless for precisely the same reasons as I held in my reasons for judgment and that Mr Viscariello determined to continue to prosecute the proceedings notwithstanding those warnings.
It was submitted that while the unrepresented status of a party may be relevant to take into account in exercising the discretion, it has also been held that where a person in the position of an unrepresented litigant should reasonably have understood the hopelessness of the claim, they cannot “be allowed forever to stand behind the shield of his own ignorance”.[9] Mr Viscariello is legally trained. He does not suffer from the limitations of a lack of knowledge of the law nor is he unfamiliar with court practices.
[9] Karam v Palmone Shoes Pty Ltd [2012] VSCA 97.
The second defendant pointed out that Mr Viscariello’s contention that he should be immune from a special costs order for the reason that the proceedings were prosecuted in the public interest has been raised repeatedly in the past and been rejected.[10]
[10] See Viscariello v Livesey & Anor [2013] SASC 99 at [100]-[104] per White J; Viscariello v Livesey & Anor [2013] SASC 198 at [61]-[62] per Kelly J; Viscariello v Livesey & Anor [2014] SASCFC 40 at [36]-[41].
It was submitted that the facts of this case resemble those of Quach v Health Care Complaints Commission (No 2),[11] where an order for costs on an indemnity basis was made.
[11] [2015] NSWCA 311.
It was further submitted that Mr Viscariello put the defendants to the additional trouble and expense in having to deal with the applications that I recuse myself and for the adjournments of the hearing before me.
Analysis
The Court has a discretion to determine by whom and to what extent costs are to be paid,[12] however as a general rule, costs follow the event.[13] In exercising its general discretion as to costs, the Court may award costs on an indemnity basis.[14]
[12] Supreme Court Act 1935 (SA) s 40.
[13] Supreme Court Civil Rules 2006 (SA) r 263(1).
[14] Supreme Court Civil Rules 2006 (SA) r 264(5)(b).
In my judgment delivered 8 December 2015, I permanently stayed the action for judicial review for the following reasons:[15]
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
[15] Viscariello v Legal Practitioners Disciplinary Tribunal & Ors [2015] SASC 192 at [95]-[99].
No prospects of success
In my view, the action was hopeless and it should have been apparent to Mr Viscariello that the action was hopeless.[16]
[16] Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401; Karam v Palmone Shoes Pty Ltd & Anor [2012] VSCA 97 at [35].
Mr Viscariello had the benefit of the decision of the Tribunal and a decision on appeal by White J. Justice Kelly and the Full Court have also considered his prospects of success on the application for security for costs.[17] Mr Viscariello was put on notice that both the second and third defendants viewed the action as an abuse of process.
[17] I note that the Full Court only dealt with the application for permission to appeal the security for costs order made by Kelly J and has not been called upon to decide the appeal from White J. The Full Court found it unnecessary to determine Mr Viscariello’s prospects of success on appeal.
Public interest
Mr Viscariello, in opposing a costs order, submitted that the action was brought in the public interest. In exercising its discretion, the Court must assess what is fair as between the parties but may also consider any issues of public interest.[18]
[18] MyEnvironment Inc v VicForests [2012] VSC 111 at [6].
Mr Viscariello’s grievances with the second and third defendants are not such that can be characterised as being in the public interest. Justice White, in Viscariello v Livesey & Anor,[19] rejected the contention that Mr Viscariello laid the charges in the Tribunal in the public interest. I share the view that Kelly J took in Viscariello v Livesey & Anor in finding that this matter “has never been other than litigation of a character which is private in nature”.[20] While there is a public interest in the maintenance of the integrity of the legal profession, in my view this action was not instituted for that purpose.
[19] [2013] SASC 99 at [100]-[104]
[20] [2013] SASC 198 at [62].
I order that the second and third defendants are to have their costs of the action on an indemnity basis pursuant to r 264(5)(b), to be agreed or taxed by a Supreme Court Master.