Viscariello v Legal Practitioners Disciplinary Tribunal; Viscariello v Legal Profession Conduct Commissioner - [2016] SASCFC 107

Supreme Court of South Australia
(Full Court)
VISCARIELLO v LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL; VISCARIELLO v LEGAL PROFESSION CONDUCT COMMISSIONER
[2016] SASCFC 107
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and His Honour Chief Judge Muecke)
27 September 2016
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - SUBSTITUTED VERDICT OR JUDGMENT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FURTHER EVIDENCE - IN GENERAL
Appeal against a decision of a single Judge of the Supreme Court of South Australia declining to extend time to bring application for judicial review. Hearing of application pursuant to r 242 of the Supreme Court Civil Rules 2006 (SA) (the Rules) for reconsideration of an earlier appeal heard by the Full Court of the Supreme Court of South Australia.
In 2007, a single Judge of the Supreme Court of South Australia found that the appellant amended the trust deed of a company he controlled to defeat anticipated costs orders. That finding and other matters became the basis of a hearing before the Legal Practitioners Disciplinary Tribunal (the Tribunal). In April 2012, the Tribunal found that the appellant engaged in unprofessional conduct and unsatisfactory conduct in relation to various matters and recommended that disciplinary proceedings be brought in the Supreme Court of South Australia.
The appellant appealed the Tribunal’s finding pursuant to s 86 of the Legal Practitioners Act 1981 (SA) (LPA). The Tribunal instituted disciplinary proceedings in the Supreme Court per s 89 of the LPA. Both matters were heard together before the Full Court.
In December 2012, the Full Court dismissed the appeal of the Tribunal’s findings, affirmed that the appellant had engaged in unprofessional conduct and invited submissions as to the appropriate orders to be made in the disciplinary proceedings.
In January 2013, the appellant applied to re-open the Full Court appeal alleging the decision had been based on material errors of fact. That application was refused. In May 2013, the Full Court ordered that the appellant’s name be removed from the roll of legal practitioners. In December 2013, the High Court dismissed an application for special leave to appeal against the decisions of the Full Court not to re-open the appeal and the orders striking the appellants name from the roll of legal practitioners.
In May and June 2014, the appellant applied for permission to proceed with judicial review of the Tribunal’s findings, the appellant also sought an extension of time. In August 2015, a single judge of the Supreme Court of South Australia declined the extension of time on the basis that the applicant was substantially out of time and that the application would be futile.
The appellant also lodged an application pursuant to r 242 of the Rules seeking a review of the Full Court appeal of 2012. The hearing of that application was deferred pending the outcome of the hearing on whether permission to extend time would be granted.
The appellant appeals against the 2015 decision of the single Judge of the Supreme Court on the basis that the Judge erred: in calculating the time for the appeal; in finding that the appeal of the Tribunal's decision to the Full Court was an appeal by way of rehearing and therefore the appellant could have previously raised any of the points he attempted to raise now; and, in finding that the findings of the Full Court were independent of the findings of the Tribunal and therefore the judicial review proceedings were futile.
Held per Kourakis CJ (Nicholson J and Chief Judge Muecke agreeing) dismissing the appeal and the application under r 242 of the Rules:
1. The relevant starting time for calculating whether the appellant’s application for judicial review was out of time was when the Tribunal made its findings and orders, and not when the High Court dismissed the application for special leave.
2. An appeal of the Tribunal’s findings per s 86 of the LPA is an appeal by rehearing and not an appeal in the strict sense. The errors complained of by the appellant could have been agitated in the Full Court appeal.
3. The findings of the Full Court that the appellant had engaged in unprofessional conduct and the orders removing his name from the roll of legal practitioners existed independently of the findings of the Tribunal. Any proceedings for judicial review of the Tribunal’s decision would be futile as the orders of the Full Court would be valid and binding.
4. The Tribunal has a discretion as to the nature on inquiry it undertakes, including whether that inquiry will be adversarial or inquisitorial, or degrees of both. The appellant could have called the witnesses he now seeks to call in the Full Court before the Tribunal.
Fences Act 1975 (SA); Legal Practitioners Act 1981 (SA) s 82, s 86, s 89; Supreme Court Civil Rules 2006 (SA) r 200, r 242, referred to.
Legal Practitioners Conduct Board v Jones [2009] SASC 347; Cameron v Cole (1944) 68 CLR 571, applied.
McAdam v Roberston (1999) 73 SASR 360; Moyes v J & L Developments Pty Ltd [2004] SASC 319; Players Pty Ltd (in Liquidation)(Receivers Appointed) & Ors v Clone Pty Ltd (2013) 115 SASR 547; Viscariello v Legal Practitioners Conduct Board [2012] SASCFC 147; Viscariello v Legal Practitioners Conduct Board (No 2) [2013] SASCFC 27; Viscariello v Legal Practitioners Disciplinary Tribunal [2015] SASC 116; Viscariello v Livesey [2013] SASC 99; Viscariello v Macks [2014] SASC 189; Walsh v Legal Profession Conduct Commissioner [2016] SASCFC 52, discussed.
Moyes v J & L Developments Pty Ltd (No 2) (2007) 250 LSJS 61; New South Wales v Kable (2013) 252 CLR 118; Legal Practitioners Conduct Board v Colton (2012) 113 SASR 467; Legal Practitioners Complaints Committee v Trueman [1996] SASC 5910; Ousley v the Queen (1997) 192 CLR 69, considered.

VISCARIELLO v LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL; VISCARIELLO v LEGAL PROFESSION CONDUCT COMMISSIONER
[2016] SASCFC 107
Full Court: Kourakis CJ, Nicholson J and Chief Judge Muecke

KOURAKIS CJ: This is an appeal against a decision of Parker J declining to extend the time within which the appellant could bring an application for judicial review.
This is also a hearing on the appellant’s application pursuant to 6SCR242 of the Supreme Court (Civil) Rules 2006 (the Rules), for a reconsideration of his appeal in the matter of Viscariello v Legal Practitioners Conduct Board,[1] an appeal brought by him against a finding of the Legal Practitioners Disciplinary Tribunal (the Tribunal) that he was guilty of unprofessional conduct.
[1] Viscariello v Legal Practitioners Conduct Board [2012] SASCFC 147.
I find that Parker J did not err in refusing the application for an extension of time and in dismissing the application for judicial review. The appellant sought to set aside adverse findings made against him by the Tribunal two years after they were made and a year after the Full Court had removed him from the Roll of Practitioners. Moreover, the grounds on which the appellant sought to set aside the Tribunal’s finding had been traversed and dismissed on an appeal to the Full Court against the Tribunal’s finding and on an application to re-open the Full Court’s dismissal of the appeal.
I would dismiss the appeal against the decision of Parker J.
I would also refuse the 6SCR242 application. The application is founded on complaints which have been found by this Court to be without merit in two previous hearings.
My reasons follow.
Background
This matter has a long and protracted history, which is necessary to recount.
In 2008 the Legal Practitioners Conduct Board (the Board) (as it was then) brought proceedings in the Tribunal (Action no 8 of 2008) against the appellant alleging unprofessional and unsatisfactory conduct pursuant to s 82(2) of the Legal Practitioners Act 1981 (the LPA) (the Tribunal hearing).
The basis for the charge of unprofessional conduct arose from the appellant’s conduct in the matter of Moyes v J & L Developments Pty Ltd (the Development Action).[2] The charge of unsatisfactory conduct is related to an action brought by a company of which the appellant was a director pursuant to the Fences Act 1975 (the Fences Act).
[2] [2004] SASC 319.
Background to the Development Action
The appellant was a director (and then former director) of the applicant company (J & L Developments). J & L Developments was the corporate trustee of the SP Trust and the Littlehampton Trust. The assets of the SP Trust included land at 33 Birch Road, Stirling (the Birch Road land) on which the development was proposed. The assets of the Littlehampton Trust included land at Littlehampton (the Littlehampton land).
The appellant was a director of J & L Developments from 29 May 1991 to 1 May 2006. His then de facto partner, Ms Tanya Hamilton‑Smith, was a director from 24 September 2002 until 1 June 2004 and from 1 May 2006 to 20 June 2006. Both held powers of appointment of new trustees under the terms of both the SP and Littlehampton Trusts. The beneficiaries of the SP Trust included the appellant and Ms Hamilton-Smith and her children.
The Development Action concerned an application for provisional development plan consent for construction of a two-storey residential dwelling on the Birch Road land (the Development).
On 4 August 2003, the Adelaide Hills Council (the Council) refused planning approval for the Development. An appeal was lodged by J & L Developments to the Environment, Resources and Development Court (the ERD Court). The appellant conducted the appeal for J & L Development.
On 5 April 2004, the ERD Court allowed the appeal and granted development approval. On 19 April 2004, the objector, Mr Moyes, appealed against the ERD Court’s decision to the Supreme Court. The appellant again had the conduct of the matter for J & L Developments. On 5 May 2004, at a directions hearing which the appellant attended, the appeal was listed for hearing on 4 June 2004 before Debelle J.
The appellant amended trust deeds for each of the SP Trust and the Littlehampton Trust (collectively referred to as the Trust Deeds) with effect from 1 June 2004. The amendments deleted clause 20(b) of each of the Trust Deeds, which had provided:
The Trustees shall be indemnified out of the Assets of the Trust Fund for all liabilities incurred by them in the course of acting for the trust.
The amendments substituted a new clause 20(b), which stated:
The Trustees shall not be indemnified out of the Assets of the Trust Fund or at all for all or any liabilities incurred by them in the course of acting for the trust.
(emphasis added)
The amendments also removed Ms Hamilton-Smith as an appointor of the trusts.
On 7 October 2004, Debelle J allowed Mr Moyes’ appeal with the effect of restoring the Council’s decision to refuse development consent.[3] An order was made that J & L Developments pay the costs of the action.
[3] Moyes & Anor v J & L Developments & Anor [2004] SASC 319.
On 30 May 2006 and 1 June 2006, a bill of costs was lodged in the ERD Court. On 24 July 2006, they were taxed and, on 24 August 2006, allocaturs for the taxed sum were issued against J & L Developments.
Between 1 April 2006 and 31 August 2006 Mr Viscariello caused J & L Developments to transfer the Birch Road land to Palm Hills Pty Ltd (Palm Hills). The trust deeds were amended to substitute Palm Hills as trustee. The appellant was the sole shareholder and director of Palm Hills.
On 1 September 2006, an application was made to the District Court for charging orders over the Birch Road land property (District Court charging order application).
On 5 September 2006, the appellant swore an affidavit in opposition to the District Court charging order application. By that time the appellant had ceased to be a director of J & L Developments, having resigned on 1 May 2006, to be replaced by Ms Hamilton-Smith and her mother.
On 20 September 2006, the District Court charging order application came on for argument but the matter was ultimately adjourned to 5 October 2006. Orders were made that J & L Developments file any further affidavits by 3 October 2006.
On 8 September 2006, interim allocaturs were issued in the Supreme Court for the taxed costs of the Development Action. On 14 and 15 September 2006, Mr Moyes issued applications for charging orders over the Birch Road land. On 19 September 2006, those applications were listed for argument on 4 October 2006 (the Supreme Court charging order application).
On 3 October 2006, Ms Hamilton-Smith swore virtually identical affidavits in both the Supreme and District Court matters (the Hamilton-Smith affidavits). Each affidavit contained statements to the effect that the appeal to the ERD Court was brought by J & L Developments in its own right, and not in its capacity as trustee for the beneficial owner of the land, namely the SP Trust.
On 5 October 2006, the District Court charging order application was adjourned, pending the hearing and determination of the Supreme Court charging order application.
The Supreme Court charging order application proceeded before Debelle J on 1 December 2006. Ms Hamilton-Smith was not available for cross‑examination on her affidavit but the appellant was called to give evidence. The appellant testified that J & L Developments had made the application for planning approval of the Development and participated in the appeals in its own right.
Debelle J delivered reasons for judgment on 11 July 2007 in which adverse credit findings were made against the appellant.[4] Debelle J found that the appellant had effected the trust deed amendments and transferred the Birch Road land to defeat the anticipated costs orders in the Development Action.
[4] Moyes & Anor v J & L Developments Pty Ltd & Anor (No 2) (2007) 250 LSJS 61, 64 (Debelle J).
The Tribunal hearing
The complaint of unprofessional conduct made in the Tribunal hearing was that in 2004 the appellant amended the SP trust deeds, and in 2006 transferred the Birch Road land, in an attempt to defeat adverse costs orders which might be made against J & L Developments in the Development Action (the costs evasion conduct).
The Legal Practitioners Conduct Board also alleged that the appellant gave false and dishonest evidence on 1 December 2006 before Debelle J in the Supreme Court charging order application, by maintaining that J & L Developments had acted in its own right, and not as a trustee of the SP Trust (the false evidence conduct).
The third charge in the Tribunal hearing was that, between November 2004 and June 2005, the appellant in his capacity as solicitor pursued a claim for contribution under the Fences Act on behalf of J & L Developments which was not reasonably arguable (the Fences Act charge) and that in doing so, the practitioner engaged in unsatisfactory conduct. The charge was dealt with primarily by way of a statement of agreed facts.
The Hamilton-Smith affidavits were before the Tribunal, as we shall see, but the use to which they could be put later came to be contested. The Tribunal referred to them as follows:
On 28 September 2006 the practitioner sent a draft affidavit of Ms Hamilton-Smith to counsel to settle, and that draft after amendment was sworn by Ms Hamilton-Smith on 3 October 2006. That affidavit deposed as follows:
[6.1]The appeal to the Environment Court was filed by J & L Developments in its own right and not in its capacity as trustee for the SP Trust, the beneficial owner of the land;
[6.2]J & L Developments was and remains a development company and has in the past undertaken other developments and has lodged other development applications in its own right and not in its capacity as a trustee for any trust.
The Tribunal hearing was heard over 33 days between 2008 and 2011.
On 3 April 2012, the Tribunal found the appellant guilty of unprofessional conduct. On 12 April 2012, the Tribunal recommended that disciplinary proceedings be commenced against the appellant in the Supreme Court (the finding and recommendation of the Tribunal).
The appellant admitted the facts alleged on the Fences Act charge and that those facts amounted to unsatisfactory conduct. The Tribunal found the appellant guilty of the charge of unsatisfactory conduct and reprimanded him on that charge. No challenge to that decision was made until the application for judicial review brought before Parker J.
The disciplinary proceedings
The appellant appealed against the Tribunal’s finding pursuant to s 86 of the LPA (the Full Court appeal) and the Board instituted disciplinary proceedings in the Supreme Court, pursuant to s 89 of the LPA (the disciplinary proceedings). The Full Court appeal and the disciplinary proceedings were heard together before the Full Court.
On 21 December 2012, the Full Court dismissed the appeal on the disciplinary proceedings. The Full Court found that the appellant had engaged in unprofessional conduct as charged and invited submissions as to the appropriate orders to be made in the disciplinary proceedings.[5]
[5] Viscariello v Legal Practitioners Conduct Board [2012] SASCFC 147.
One of Mr Viscariello’s grounds was that the Tribunal had failed to find that changes to the Trust Deeds were made to protect Ms Hamilton‑Smith from proceedings brought by one of her creditors, a liquidator, Mr Macks. That ground was dismissed for the following reason:[6]
[6] Viscariello v Legal Practitioners Conduct Board [2012] SASCFC 147 at [93]-[105].
Concern over liabilities of Ms Hamilton-Smith
Mr Viscariello complained that the Tribunal erred in making findings that were not sustainable concerning Mr Viscariello’s evidence about his concern as to the liabilities of Ms Hamilton-Smith. After the conclusion of the hearing of the appeal, on 22 August 2012, Mr Viscariello applied for permission to amend his grounds of appeal to introduce this complaint and to adduce further evidence. The Board did not oppose the amendment to the grounds of appeal. We granted permission to Mr Viscariello to amend his grounds of appeal.
The Board opposed the reception of the further evidence on the grounds that much of it was not new and it was not in any event material or decisive, but accepted that the further evidence ought to be received if this Court took the view that it was material and significant.
This complaint is directed to the Tribunal’s finding concerning Mr Viscariello’s evidence that he was concerned that Ms Hamilton-Smith’s liabilities could be a source of attack on the trust assets.
Mr Viscariello sought to adduce evidence on appeal which he contended is relevant to the Tribunal’s finding in this respect. The essence of the further evidence is the transcript of evidence given on 22 August 2012 during the trial of an action in this Court in which Mr Viscariello is suing Peter Macks. That action relates to Mr Macks’ alleged maladministration of the winding up of two companies, Bernstein and Newmore, of which Mr Viscariello was a director and major shareholder.
In August 2002, under the control of Mr Macks as liquidator, Bernstein commenced legal proceedings against Ms Hamilton-Smith for a debt of approximately $27,000. This led to legal proceedings in various courts in which Ms Hamilton-Smith was a party. Mr Macks gave evidence at the trial concerning his reasons for pursuing Ms Hamilton-Smith and the prospects of recovery if successful. During cross-examination on 22 August 2012 by Mr Viscariello’s counsel, Mr Macks was asked whether he had considered the prospect of bankrupting Ms Hamilton-Smith, if successful in the litigation, and her trustee in bankruptcy exercising her powers as appointor to distribute trust property in favour of the bankruptcy administration.
On appeal, Mr Viscariello contended that Mr Macks’ evidence demonstrated that Mr Viscariello’s own evidence before the Tribunal that he had been motivated to remove Ms Hamilton-Smith as appointor of the Stirling Trust and Little Hampton Trust by a concern over her bankruptcy trustee seeking to exercise the power of appointment had reflected a valid concern.
We reject this contention. Mr Viscariello’s contention conflates two quite different changes to the trust deed of the Stirling Trust which were made in June 2004. The first change was to substitute Mr Nicolaou for Ms Hamilton-Smith as one of the two joint appointors, which coincided with Mr Nicolaou replacing Ms Hamilton-Smith as a director and shareholder of J & L Developments. The second change was the amendment to clause 20(b) to remove the right of indemnity. It was never the Board’s case that the first set of changes was an attempt in any way to defeat adverse costs orders in the development approval litigation. Logically, there could be no such link and there is no suggestion in the Tribunal’s reasons that it considered that there was any such link. Mr Viscariello’s motivation in removing Ms Hamilton-Smith as an appointor of the trust and as a director and shareholder of J & L Developments was not in issue in the proceedings before the Tribunal.
During cross-examination in the Tribunal, Mr Viscariello gave evidence that he removed Ms Hamilton-Smith as appointor of the trust because she was involved in a lot of litigation, it was highly probable that she would be bankrupted and, in that event, it could be argued that she controlled the trust and therefore the bankruptcy trustee could try to attack the trust assets. As observed above, Mr Viscariello vacillated in the evidence which he gave before the Tribunal on his motivation for removing the right of indemnity. His evidence was vague, confused and inconsistent. His evidence in cross-examination of his concern about Ms Hamilton-Smith’s prospective bankruptcy might be read as explaining why he changed the trust deed in June 2004 in both respects being removal of the indemnity as well as removal of Ms Hamilton-Smith as appointor. At times in his submissions on appeal, Mr Viscariello put that very construction upon his evidence. However, logically Ms Hamilton-Smith’s bankruptcy could not have been connected with the amendment to clause 20(b) and Mr Viscariello on appeal did not articulate how it could have been. More importantly, in his evidence before Debelle J on 1 December 2006 and in his response to the Board on 23 November 2007, Mr Viscariello had unequivocally accepted that adverse costs orders were a motivation for the amendment to clause 20(b) and did not raise Ms Hamilton-Smith’s prospective bankruptcy as being relevant or at all.
The paragraph in the Tribunal’s reasons the subject of the attack by Mr Viscariello appears under the heading “The amendment to clause 20(b) of the SP Trust Deed on 1 June 2004” and reads as follows:
The practitioner has reluctantly admitted (T509) that the costs were a factor in changing the deed. There was no other immediate reason to change this trust deed in this regard other than the costs. There was no other danger to the trust assets. We reject the evidence from the practitioner that he was concerned that Ms Hamilton-Smith’s liabilities could be a source of attack on the trust assets because she was an appointor (T510-512).
(Emphasis added)
Mr Viscariello contended that, by the comment in the last sentence, the Tribunal was rejecting his evidence that he changed the appointor, as opposed to removing the indemnity, because of his concerns over Ms Hamilton-Smith’s liabilities. We reject this contention. The context of the paragraph is the amendment to clause 20(b). This is reinforced by the words emphasised in the passage above “in this regard”. The change of appointor was irrelevant to the Board’s case involving the amendment to clause 20(b). Understood in context, the Tribunal was rejecting the suggestion, repeated at times in submissions on appeal before us, that Ms Hamilton-Smith’s liabilities were a motivation for changing clause 20(b).
In any event, Mr Macks’ evidence given in August 2012 does not support the contention that Mr Viscariello, in June 2004, feared that Ms Hamilton-Smith’s prospective bankruptcy trustee would exercise her power of appointment to change the trustee of the Stirling Trust and then make distributions of trust assets to Ms Hamilton-Smith’s bankruptcy estate. On appeal, Mr Viscariello explicitly accepts that, as matter of trust law, a bankruptcy trustee could not exercise the power of appointment and could not do so to benefit the bankruptcy administration. Mr Viscariello in his evidence before the Tribunal, was referring to potential and unlawful conduct on the part of the bankruptcy trustee. By contrast, Mr Macks did not give any evidence that it was his intention or purpose that a bankruptcy trustee appointed to Ms Hamilton-Smith’s estate would act in that improper way. His evidence addressed only potential legitimate and lawful conduct on the part of a prospective bankruptcy trustee.
When considered as a whole, it is clear on Mr Macks’ evidence that he had not had any experience in which a bankruptcy trustee had acted illegitimately in the manner addressed in Mr Viscariello’s evidence before the Tribunal and did not contemplate that this would occur. Mr Macks had not in fact had any experience in which a bankruptcy trustee had exercised a power of appointment at all. Accordingly, Mr Macks’ evidence does not support the fear identified by Mr Viscariello.
Finally, there was abundant material before the Tribunal to demonstrate that adverse costs orders were, at the very least, a major factor in Mr Viscariello’s amendment of clause 20(b) of the trust deed. We have already referred to that evidence. That material is overwhelming, even if one ignores the last sentence of the impugned paragraph of the Tribunal’s reasons.

Another of Mr Viscariello’s grounds of appeal was that the Tribunal did not give any weight to the Hamilton-Smith affidavits on the issue of whether J & L Developments applied for development approval of the Birch Road land in its own right or as the trustee of the SP Trust. The Full Court dismissed that ground for the following reasons:[7]
Mr Viscariello complained that the Tribunal wrongly rejected the force of the evidence comprised by Ms Hamilton-Smith’s affidavit sworn on 3 October 2006 that J & L Developments lodged the development application in its own right and not as trustee of the Stirling Trust.
Mr Viscariello suggested that the Tribunal rejected that evidence because it found that Ms Hamilton-Smith was interstate or overseas from 5 September to 30 October 2006 and that this was erroneous because the evidence was clear that she had returned by 3 October 2006, the date on which she swore her affidavit.
It is apparent from the reasons of the Tribunal that the number “30” is a typographical error and was intended by the Tribunal to read “3”. The Tribunal had earlier in its reasons referred to Ms Hamilton-Smith’s swearing the affidavit on 3 October 2006 and the affidavit itself was before the Tribunal and was manifestly sworn before Mr McNamara in Adelaide. The Tribunal did not say that it rejected the statement in Ms Hamilton-Smith’s affidavit because she was interstate or overseas on the date on which it was sworn. That would have been an irrational basis on which to reject such evidence and there is no reason to attribute such reasoning to the Tribunal.
More importantly, it was obvious that Ms Hamilton-Smith could not have had personal knowledge of the capacity in which J & L Developments had been acting when it lodged the development application and appeal to the Environment, Resources and Development Court in 2003 because she was not a director of J & L Developments at the time. Her knowledge of those matters could only have been sourced from Mr Viscariello himself. Any reliance by Mr Viscariello upon Ms Hamilton-Smith’s affidavit before the Tribunal could only have been of a bootstraps nature. We reject Mr Viscariello’s contention.
[7] Ibid at [152]-[155].
On 23 January 2013, the appellant applied to re-open the Full Court appeal, asserting that material errors of fact had been made. On 12 April 2013, the Full Court refused the application to reopen the appeal.[8]
[8] Viscariello v Legal Practitioners Conduct Board (No 2) [2013] SASCFC 27.
A ground of the application to re-open the appeal was that the Full Court had mistakenly proceeded on the basis that Ms Hamilton-Smith was not a director of J & L Developments when she swore the affidavit. The Full Court accepted that it had made an error by finding that Ms Hamilton-Smith was not a director at the relevant times. However, the Full Court found that such an error was not material as the affidavit did not have a testimonial effect. In relation to the later finding, the Full Court said the following:[9]
[9] Ibid at [34]-[36].
A Further Change of Position - An Investigative Approach
When counsel appearing on the application to re-open was confronted with these difficulties, it was submitted for the first time that the Tribunal, as part of its investigative role, should have given the affidavits testimonial effect. It was then contended that this Court, on the appeal, should also have given the affidavits testimonial effect notwithstanding that both parties conducted their cases before the Tribunal on the appeal on the basis they were not to be given testimonial effect.
Counsel appearing for the Board, who had appeared throughout the proceedings, rejected these contentions. It was accepted that, in general terms, the Tribunal was involved in an investigation. However, it was pointed out that the proceeding before the Tribunal was conducted as an adversary proceeding. Both the Board and Mr Viscariello were represented by senior counsel. The proceeding before the Tribunal was treated as being comparable to the hearing of a complaint and conducted on the basis that the Board carried a high onus before findings of unprofessional conduct could be made. Attention was drawn to what is described as the Briginshaw principle.
The suggestion that the Tribunal was under a duty to give the affidavits of Ms Hamilton-Smith testimonial effect because in part it was undertaking an investigative role is rejected. The position is that neither party sought that the affidavits be given any testimonial effect. They were before the Tribunal only as evidence of a historical event. Before this Court on the appeal, no submission was made that, because of the investigative role of the Tribunal, the affidavits were to have testimonial effect. This submission also represents a change of position. As earlier noted, the parties were represented by senior counsel before the Tribunal and it may be reasonably inferred that considered decisions were made with respect to the use to which the affidavits could be put. Also, as earlier noted, these matters were confirmed by the same counsel appearing on the appeal.
(citation omitted)
On 21 May 2013, the Full Court in the disciplinary proceedings ordered that the appellant’s name be removed from the roll of legal practitioners.
The appellant then applied for special leave to appeal to the High Court against the refusal of the Full Court to re-open his appeal and against the orders striking off his name from the roll of legal practitioners. On 3 December 2013, the High Court dismissed the applications for special leave to appeal.
The judicial review proceedings
On 3 May 2014 and 30 June 2014, the appellant applied for permission to proceed with judicial review of the finding and recommendation of the Tribunal. The appellant also sought an extension of time in relation to both applications.
The appellant also lodged an application pursuant to 6SCR242 of the Rules seeking a review of this Court’s decision on the Full Court appeal. The hearing of that application was deferred pending the Court’s decision on the permission to proceed with judicial review.
On 7 August 2015, Parker J declined to extend time to allow the appellant to seek permission to proceed with the applications for judicial review and (to the extent necessary) also refused permission to proceed.
Parker J dismissed the extension on the basis that the appellant could have commenced his application for judicial review from the time that the Tribunal made its findings on 3 April 2012 and 13 April 2012. Therefore the appellant was substantially out of time.[10]
[10] Viscariello v Legal Practitioners Disciplinary Tribunal [2015] SASC 116 at [48].
Parker J also found that granting an extension of time would be futile because there was no reasonable prospect that the appellant would obtain an order for judicial review.
First, Parker J observed that the jurisdictional errors alleged by the appellant (subject to one exception, which I turn to below) could have been raised on the Full Court appeal.[11] A judgment should not be impugned in the special supervisory jurisdiction of the Supreme Court when there is a more complete right of appeal against the judgment and for that reason the orders sought would be refused.
[11] Ibid at [59].
Secondly, the orders would be refused because prosecution of the judicial review proceeding would be contrary to the public interest in the finality of litigation.[12]
[12] Ibid at [58]-[61].
Thirdly, irrespective of any decision to quash the Tribunal’s findings, the orders of the Full Court striking the appellant from the roll of practitioners and dismissing his appeal would remain in force. As a result, Parker J found that no trial judge would quash the Tribunal’s findings as it would be futile to so.[13]
[13] Ibid at [66]-[68].
The appellant appealed against the decision of Parker J on a multiplicity of grounds. On 25 September 2015, I made an order that the appeal and the 6SCR242 application be consolidated.
Appeal – the appellant’s submissions
I do not propose to deal with each of the appellant’s 14 grounds separately. There is much overlap between them. The appellant’s complaints can be distilled to three essential grounds, namely that Parker J erred:
1in his calculation of the length of the appellant’s delay in bringing his application;
2in finding that the appeal to the Full Court was “an appeal by way of re-hearing” – and that the appellant could therefore have raised the errors he seeks to now rely upon before the Full Court.
3in concluding that the Full Court’s findings as to his conduct stood independently of the findings of the Tribunal – and the judicial review proceedings were therefore futile.
Delay
The appellant contends that time to commence the actions for judicial review ran from the time that he had exhausted his appeal rights, when the High Court refused special leave to appeal on 3 December 2013.[14]
[14] Second Notice of Appeal, Grounds 3 and 14.
Rule 6SCR200 provides that an action for judicial review must be commenced as soon as practicable after the date when the grounds for the review arose and, in any event, within six months of that date.
The judicial review applications were filed on 30 May 2014 and 30 June 2014 respectively. The orders sought by the appellant are directed at quashing the Tribunal’s factual findings, which were published on 3 April 2012, and the Tribunal’s orders recommending that disciplinary proceedings be commenced in the Supreme Court and that the appellant pay the costs order were made on 12 April 2012. The appellant submits that, if 3 December 2013 was the date from which the time period commenced, then his application of 30 May 2014 was made within the requisite six month period.
The appellant’s contention is misconceived. The grounds for review arose when the Tribunal made its findings and orders. That the appellant first chose to challenge the Tribunal’s decision by way of appeal, and not by judicial review, is quite relevant. Indeed, this case illustrates how greatly the purpose of the time limit for bringing proceedings pursuant to 6SCR200, which is to expedite judicial review proceedings, might be subverted if the appellant’s submission were accepted.
Moreover, the existence of a comprehensive appeal by way of rehearing is a reason for declining discretionary relief by way of judicial review and not a reason to allow judicial review proceedings to be prosecuted out of time.
The appellant’s applications were more than two years out of time. Parker J was correct to consider the application for an extension of time on the basis that the applications were ‘seriously out of time’.[15]
[15] Viscariello v Legal Practitioners Disciplinary Tribunal [2015] SASC 116 at [48].
Finality
The appellant asserts that the Full Court appeal, brought pursuant to s 86 of the LPA, was not an appeal by way of rehearing[16] but an appeal in the strict sense. The appellant contends that the Tribunal’s determination can be impugned by way of judicial review on grounds which could not be determined on the Full Court appeal.
[16] Second Notice of Appeal, Grounds 1 and 2.
The right of appeal under s 86 of the LPA is expressed as follows:
(1)Subject to subsection (2), a right of appeal to the Supreme Court lies against a decision of the Tribunal made in the exercise or purported exercise of powers or functions under this Act.
…
(3)The Supreme Court may, on the hearing of an appeal exercise any one or more of the following powers, as the case requires:
(a)     affirm, vary, quash or reverse the decision subject to the appeal and administer any reprimand, or make any order, that should have been administered or made in the first instance;
(b)     remit the subject matter of the appeal to the Tribunal for further hearing or consideration or for rehearing;
(c)     make any further or other orders as to costs or any other matter that the case requires.
It is plain on the very words of s 86(1) of the LPA, which confer a right of appeal against a purported exercise of power by the Tribunal, that on an appeal brought pursuant to that section the Supreme Court is empowered to grant relief for jurisdictional errors. Moreover, it is well-established by authority that an appeal brought pursuant to s 86 of the LPA is an appeal by way of rehearing.
In Legal Practitioners Conduct Board v Jones,[17] Layton J described the nature of the appeal as follows:
Rule 6SCR292(1) governs the hearing of this appeal. This rule provides that any appeal to the Supreme Court from any lower court or tribunal “is to be by way of rehearing (unless the law under which the appeal is brought provides to the contrary)”. No such contrary provision exists in the Act, however the Act does not expressly stipulate whether the rehearing should be de novo or otherwise. I have taken into account that on occasions an appeal by rehearing against an administrative decision may well be a hearing de novo. On this point, Cox J noted in Wigg v Architects Board (SA), that “the use of the word ‘rehearing’ will not be decisive” and that in order to determine the type of rehearing intended by particular legislation, a close examination of that act is required. His Honour recognised three different categories of statutory appeal procedure, the latter two of which may be subject to the label “rehearing”: the first is “an appeal strictly so-called” where there is no fresh evidence before the appeal court and where the only decision is whether the lower court or tribunal made the right decision on the evidence before it; the second is by way of rehearing on the documents, but where the appeal court may also hear fresh evidence so that its decision to affirm or overturn the decision of the lower court is based on the material before it at the time of the appeal; the third is an appeal de novo where the matter is heard afresh and the complainant must call witnesses and make out its case again. In a de novo appeal, the appeal court may only make a decision based on the material before it and should not be limited in any way by the lower court or tribunal’s findings.
In determining whether an appeal should be heard de novo, Gray J (with whom Nyland and Vanstone JJ agreed) in Papps v Medical Board (SA) accepted Cox J’s three categories of appeal procedure in the context of an appeal to the Full Court from a decision of the Medical Practitioners Professional Conduct Board. His Honour went on to examine the relevant provisions of the Medical Practitioners Act, in accordance with the requirement set down by Cox J, to determine the type of appeal intended by that Act. In doing so, his Honour noted that s 63(3)(c) of the Medical Practitioners Act gave the appeal court the power to “remit the subject matter of the appeal to the Board or the Tribunal (as the case may be) for further hearing or consideration or for rehearing”. Gray J reasoned that this power to remit a matter to the tribunal would have no purpose if the intent of the legislation was to hear appeals de novo. On this basis, his Honour held that the intention of the legislature was for “a rehearing on the documents, but with the power to receive further evidence on the appeal”, which corresponds with Cox J’s second category. The Legal Practitioners Act at s 86 (1)(b), contains an almost identical provision to s 63(3)(c) of the Medical Practitioners Act within a very similar legislative scheme. Therefore on the same reasoning as Gray J’s in Papps, the rehearing in the present case falls into the same category.
(citations omitted)
The reasoning of Layton J has been accepted and adopted in subsequent decisions of this Court.[18]
[17] [2009] SASC 347 at [12]-[15].
[18] Legal Practitioners Conduct Board v Colton (2012) 113 SASR 467 at [35]; Walsh v Legal Profession Conduct Commissioner [2016] SASCFC 52 at [11].
In Viscariello v Livesey,[19] the appellant himself contended that an appeal under s 86 of the LPA was an appeal by way of rehearing and in the nature of a hearing de novo. The relevant paragraphs of that judgment are as follows:[20]
The Court’s power to amend charges on an appeal under s 86 of the LPA is by no means clear. The appellant submitted that such a power was implicit in the appeal being by way of rehearing. He contended that this meant that this Court “stands in the shoes” of the Tribunal and has all of its powers at first instance.
The authorities indicate that the nature of an appeal by way of rehearing may vary according to statutory context. The appeal may, in effect, be a hearing de novo, a hearing on the material which was before the court or tribunal at first instance, or a rehearing on that material supplemented by such further material as the appellate court admits under a statutory power to do so.
There are indications in the LPA and in the Rules of this Court governing appeals that the present appeal is of the third kind, but it is not necessary to express a final view about that.
It is sufficient to say that, contrary to the submission of the appellant, I do not regard this Court, on an appeal under s 86 of the LPA, as “standing in the shoes” of the Tribunal with the effect that the appeal is a hearing de novo. The reasons of the Full Court of the Federal Court in Spencer v Commonwealth in relation to appeals under s 24 of the Federal Court of Australia Act 1976 (Cth) are pertinent in this respect. The mere fact that the appeal is one by rehearing does not mean that this Court can exercise all of the powers which were available to the Tribunal at first instance.
(citations omitted)
[19] [2013] SASC 99.
[20] [2013] SASC 99 at [113]-[115].
On an appeal by way of rehearing an appellant can impugn the subject determination on the ground of an error of law of any kind. All jurisdictional errors are errors of law.
Furthermore the grounds of appeal which the appellant now seeks to pursue would have been open to him even if an appeal under s 86 of the LPA was an appeal in the strict sense and limited to errors of law. An appeal in the strict sense differs from an appeal by way of rehearing only in that, in the former case, the appeal court is limited to the evidence adduced below and must apply the law as it was at the time the decision below was made. That is also the position on an application for judicial review for jurisdictional error. Moreover, each of the grounds on which the appellant would prosecute the judicial review application is based upon material which was ascertainable from the transcript of proceedings before the Tribunal. Even the appellant’s complaints, with which I deal below, that the Tribunal erred in failing to call certain witnesses of its own motion can be argued by reference to that transcript. In summary, even if the appeal was an appeal in the strict sense the appellant would not have been precluded from appealing on the same grounds on which he now founds his application for judicial review. Accordingly, nothing turns on the nature of the appeal proceedings brought pursuant to s 86 of the LPA.
Parker J was therefore correct to conclude that each of the errors of which the appellant complained by way of judicial review, could have been agitated on the Full Court appeal. It follows that even if an extension of time were granted, the application for judicial review would inevitably be dismissed because not only was an appeal by way of rehearing available, it had been exhaustively, albeit unsuccessfully, exercised. It would therefore be contrary to the public interest in the finality of litigation to allow the appellant to proceed with it.
I turn now to the single ground which I foreshadowed could not have been agitated in the Full Court appeal. The appellant relies upon errors which he contends were only exposed by findings I made in Viscariello v Macks.[21]I will refer to this ground as the “fresh evidence” ground.
[21] Viscariello v Macks [2014] SASC 189.

The fresh evidence ground was dismissed by Parker J for the following reasons: [22]
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.
[22] Viscariello v Legal Practitioners Disciplinary Tribunal [2015] SASC 116 at [60].
Parker J correctly observed that any injustice which the appellant contends arose from the unavailability of fresh evidence could be dealt with in the appellant’s 6SCR242 application.[23] Indeed, it is only on an appeal by way of rehearing, and not on judicial review, that a decision can be set aside on the ground of recently discovered further evidence. I will deal with the fresh evidence ground when I turn to the 6SCR242 application to reopen the Full Court appeal in [118]-[125] below and, as shall be seen, find that it could not possibly have affected the Tribunal’s determination.
[23] Ibid at [68].
Futility
The appellant contends that Justice Parker erred in applying the futility principle and in finding that ‘the Full Court reached its own independent findings on the issues concerning his conduct’.[24] The appellant submits that the Full Court did not in fact reach an independent decision and that if he demonstrates that the Tribunal made a jurisdictional error, the order of the Full Court removing his name from the Roll of Practitioners ought to be set aside.
[24] Ibid at [66].
As has been seen, the Full Court appeal was heard together with the disciplinary proceedings. The Full Court findings were therefore made both in the Full Court appeal from the Tribunal’s decision and in its disciplinary jurisdiction, whether the inherent jurisdiction or pursuant to s 89(5) of the LPA.
In summarising the matter, the Full Court stated:[25]
We have reached the conclusion that Mr Viscariello’s appeal should be dismissed. We consider that the findings of the Tribunal should be confirmed. Those findings were open to the Tribunal. We would go further. The evidence before the Tribunal overwhelmingly supported the conclusion that the charges had been made out and that, as a consequence, Mr Viscariello’s unprofessional conduct should now be addressed. Our reasons follow.
[25] Viscariello v Legal Practitioner’s Conduct Board [2012] SASCFC 147 at [11].
The reasons given by the Full Court for those findings are comprehensive.
In relation to the costs evasion conduct in 2004, the Full Court stated:[26]
No error has been demonstrated in the Tribunal’s finding that Mr Viscariello made the June 2004 amendment to clause 20(b) of the Stirling trust deed for the purpose of attempting to defeat adverse costs orders against J & L Developments in the development approval litigation. No material error has been demonstrated in the reasoning of the Tribunal. The findings made by the Tribunal were open to it.
We would go further. On the evidence before the Tribunal, the conclusion was overwhelming that this was Mr Viscariello’s purpose. Mr Viscariello unequivocally admitted in his evidence before Debelle J on 1 December 2006 and his letter to the Board dated 23 November 2007 that the change to clause 20(b) of the trust deed was motivated by the forthcoming hearing of the appeal before Debelle J. His evidence in this respect before the Tribunal was both internally inconsistent and contrary to those earlier accounts in December 2006 and November 2007.
[26] Ibid at [122]-[123].
In respect of the costs evasion conduct in 2006, the Full Court stated:[27]
No error has been demonstrated on the part of the Tribunal in finding that Mr Viscariello changed the trustee for the purpose of attempting to defeat adverse costs orders against J & L Developments in the development approval litigation. No error has been demonstrated in the reasoning of the Tribunal. The findings made by the Tribunal were open.
On the evidence before the Tribunal, the conclusion was overwhelming that this was Mr Viscariello’s purpose. By this time, J & L Developments was the subject of actual costs orders which were likely to be quantified in the order of $50,000. There was no other rational reason for Mr Viscariello to change the trustee and convey the legal title to the Stirling property to Palm Hills. The explanation advanced by Mr Viscariello in his evidence before the Tribunal was not believable. His evidence that he could not replace the second director, Mr Nicolaou, was false because he in fact did so by replacing him with Ms Hamilton-Smith. In any event, it would manifestly have been much easier to change the constitution of J & L Developments to permit it to have a single director than to change the trustee of two trusts and to convey the legal title to two properties.
[27] Ibid at [137]-[138].
In relation to the false evidence conduct in 2006, the Full Court stated:[28]
No error has been demonstrated in the Tribunal’s finding that J & L Developments acted in its capacity as trustee of the Stirling Trust and not in its own right in lodging the application for development approval and in relation to the subsequent appeals. No material error has been demonstrated in the reasoning of the Tribunal. The findings made by the Tribunal were open to it.
We would go further. The evidence before the Tribunal was overwhelming. The conclusion that J & L Developments had not been acting in its own right, that Mr Viscariello belatedly advanced this contention in an attempt to defeat the charging orders being sought and that he gave false evidence before Debelle J when he said that J & L Developments had been acting in its own right was open and should in our view be confirmed.
[28] Ibid at [177]-[178].
In 2012, s 89 of the LPA was as follows:[29]
[29] Legal Practitioners Act 1981—30.1.2012 to 16.6.2013.
89—Proceedings before Supreme Court
(1)Where the Tribunal after conducting an inquiry into the conduct of a legal practitioner recommends that disciplinary proceedings be commenced against the legal practitioner in the Supreme Court, the Board, the Attorney-General or the Society may institute disciplinary proceedings in the Supreme Court against the legal practitioner.
(2)In any disciplinary proceedings against a legal practitioner (whether instituted under this section or not) the Supreme Court may exercise any one or more of the following powers:
(a)     it may reprimand the legal practitioner;
(b)     it may make an order imposing conditions on the legal practitioner’s practising certificate (whether a practising certificate under this Act or an interstate practising certificate)—
(i)relating to the practitioner’s legal practice; or
(ii)requiring that the legal practitioner, within a specified time, complete further education or training, or receive counselling, of a specified type;
(c)     it may make an order suspending the legal practitioner’s practising certificate (whether a practising certificate under this Act or an interstate practising certificate) until the end of the period specified in the order or until further order;
(d)     it may order that the name of the legal practitioner be struck off the roll of legal practitioners maintained under this Act or the roll kept in a participating State that corresponds to the roll maintained under this Act;
(e)     it may make any other order (including an order as to the costs of proceedings before the Court and the Tribunal) that it considers just.
(3)This Part does not derogate from the inherent jurisdiction of the Supreme Court to discipline legal practitioners.
…
(5)In any disciplinary proceedings—
(a)     the Supreme Court may, without further inquiry, accept and act on any findings of the Tribunal or of a Judge or Master to whom a matter has been referred for investigation and report under subsection (4); and
(b)     the Supreme Court may—
(i)receive in evidence a transcript of evidence taken in any proceedings before a court of any State and draw any conclusions of fact from the evidence that it considers proper;
(ii)adopt, as in its discretion it considers proper, any findings, decision, judgment or reasons for judgment of any such court that may be relevant to the proceedings.
(6)Where the Supreme Court is satisfied, on the application of the Board, the Attorney-General or the Society, that a legal practitioner is disqualified or suspended from practice under the law of any other State (whether or not that State is a participating State), it may, without further inquiry, impose a corresponding disqualification or suspension under the provisions of this section.
The Full Court made its own findings before imposing a sanction pursuant to s 89(2) of the LPA. It is immaterial whether the Full Court dismissed the appeal and then accepted and acted on the Tribunal’s finding pursuant to s 89(5) of the LPA, or, made its own findings on the face of the transcript as evidence it received in the disciplinary proceedings. On either view, the decision of the Supreme Court on the Full Court appeal and in the disciplinary proceedings was made independently of the Tribunal’s determination.
On 21 May 2013, in the disciplinary proceedings, the Full Court ordered that the appellant’s name be removed from the roll of legal practitioners.[30]
[30] Legal Practitioners Conduct Board v Viscariello [2013] SASCFC 37 at [28] (Gray, Sulan & Blue JJ).
Parker J correctly concluded that a decision by this Court to quash the Tribunal’s findings could have no legal effect on the order removing him from the roll of practitioners.[31] Even if the appellant succeeded in quashing the Tribunal’s decisions, the order of the Full Court would remain valid and binding.[32] In Cameron v Cole,[33] Rich J explained that:
It is settled by the highest authority that the decision of a superior court, even in excess of jurisdiction, is at worst voidable and is valid unless and until set aside.
[31] Viscariello v Legal Practitioners Disciplinary Tribunal [2015] SASC 116 at [66]-[67].
[32] See Ousley v The Queen (1997) 192 CLR 69 at 99 (McHugh J) and New South Wales v Kable (2013) 252 CLR 118 at 132-136, [28]-[41] (French CJ, Hayne, Crennan, Kiefel, Bell & Keane JJ).
[33] Cameron v Cole (1944) 68 CLR 571 at 590 (Rich J).
For the above reasons, I conclude that Parker J was correct to conclude that there was no utility in the appellant’s judicial review proceedings.
The Fences Act charge
The appellant contends that Parker J erred in refusing to extend the time in which to seek permission to challenge the finding by the Tribunal in respect of the Fences Act charge.
The appellant admitted before the Tribunal the facts alleged on the Fences Act charge. He also admitted that those facts amounted to unsatisfactory conduct. Specifically, the appellant admitted that he considered that the relevant application was (barely) arguable, but failed to turn his mind to whether it was reasonably arguable under the Fences Act. On the basis of the agreed facts, the Tribunal found the appellant guilty of unsatisfactory conduct in relation to the Fences Act charge. The semantic subtlety in the agreed facts should not distract from the underlying unsatisfactory conduct which was that the appellant, using his skills as a legal practitioner, recklessly brought a plainly unmeritorious claim to advance his personal interest and in doing so caused the other party unnecessary and irrecoverable expense.
The appellant did not exercise his right of appeal pursuant to s 86 of the LPA in relation to the Tribunal’s finding.
The appellant now contends that the Tribunal made a jurisdictional error on the face of the record in relying exclusively upon the statement of agreed facts provided to it by the parties and failed to discharge its duty to inquire into the conduct the subject of the Fences Act.
The Tribunal does not have a duty to investigate the conduct underlying charges which are admitted and supported by a statement of agreed facts to the extent that the appellant contends. The Tribunal, of course, is not bound to accept a mutually agreed position put by a complainant and a practitioner. Much will depend on the circumstances. In this matter the Tribunal was entitled to, and indeed acted completely reasonably, in concluding its inquiry on the basis of the material put before it. Indeed, to have embarked on a further enquiry would have been both impractical and unreasonable. The appellant’s contention that the Tribunal erred in law must be rejected.
Furthermore, the need for finality applies as strongly to the proposed review of the determination of the Fences Act charge as it does to the Development Action conduct. The findings on the Fences Act charge were made on 3 April 2012. The appellant delayed for over two years before challenging the decision. He should not be able to disturb those findings by judicial review proceedings brought so grossly out of time, with no reasonable explanation for the delay. That is all the more so because the appellant failed to exercise his right of appeal pursuant to s 86 of the LPA within the prescribed period of one month.
Moreover, there is no utility in the application because the Full Court has struck the appellant’s name from the roll of practitioners in disciplinary proceedings for the much more serious charge of unprofessional conduct.
Conclusion on the appeal
For the above reasons, I find that Parker J was correct in refusing to extend time to allow the appellant to seek permission to proceed with the action for judicial review of the Tribunal’s determinations both because of the delay and on the ground that there is no reasonable basis on which the appellant could obtain an order quashing those determinations.
Accordingly, the appeal should be dismissed.
Rule 242 application
The appellant seeks an order pursuant to 6SCR242 that the Court set aside its judgment in the Full Court appeal. 6SCR242 provides:
242—Power to correct, vary or set aside judgment
(1)The Court may correct an error in a judgment at any time.
(2)If satisfied that the justice of a case so requires, the Court may—
(a) vary a judgment; or
(b) set aside a judgment and reopen an action.
Example—
The Court might set aside a judgment and reopen an action if satisfied that the judgment is vitiated by a mistake.
(3)The Court may act under this rule on its own initiative or on application by a party.
(4)If the Court proposes to act under this rule on its own initiative, it must notify the parties and allow them an opportunity to make representations on the proposed course of action.
This Court in McAdam v Robertson[34] considered the power of the Court to re‑open an appeal. Doyle CJ, with Bleby and Martin JJ agreeing, observed:[35]
In the light of those two decisions I proceed on the basis that the relevant principles are those stated by the majority in Smith. I consider that the observations of Mason CJ and Brennan J in Autodesk provide reliable guidance in relation to the exercise of the jurisdiction. I refer in particular to their observations that the jurisdiction is not exercised to enable a party to improve upon the argument that it has put, or merely to demonstrate that a decision is wrong. However, I proceed on the basis that a misapprehension in a significant respect as to the facts or the law may be a basis for the exercise of the jurisdiction, but in the light of what I have just said that cannot be a misapprehension which would be demonstrated only by persuading the Court to change its mind on something that it had already decided. I also proceed on the basis that the jurisdiction will not necessarily be exercised in the same way by an intermediate court of appeal and by a final court of appeal, although I do not attempt to identify any relevant distinctions here. I merely make the point that, in the case of the Full Court, the ability to apply to the High Court for special leave to appeal is a relevant matter that will tend to confine the exercise of the jurisdiction.
I therefore proceed on the basis that, the judgment not having been drawn up, the Full Court may review its decision. The power is to be exercised with great caution. The reasons for that are obvious. There is a strong public interest in the finality of litigation. Once a stage in the process of litigation has been completed, ordinarily it should not be revisited. Our system of adversary litigation, with the obligation that it imposes upon the parties to present their whole case and to present their best case, would begin to collapse if courts too readily entertained applications to reopen decisions given after a full hearing. The power can be exercised if some important principle of law has been overlooked, or if there is an apparent misapprehension as to a significant fact, but this is to be distinguished from enabling a party to attempt to persuade a court that it should change its view of a matter that it has considered and decided.
As the High Court said in Smith (at 265) the power is discretionary. It is not a power that lends itself to detailed categorisation, but nor is the discretion an ample one. Indeed, it is fairly closely confined.
(emphasis added)
[34] (1999) 73 SASR 360.
[35] McAdam v Robertson (1999) 73 SASR 360 at [38]-[40].
The application of 6SCR242 was recently considered by this Court in Players v Clone.[36] That matter concerned the failure of the successful party to disclose a document at trial. The Full Court explained the scope of 6SCR242 as follows:[37]
Both rules [both the current Rule 242 and its predecessor, 87R 84.12] are in aid of the inherent jurisdiction of the Court to control its processes. It is to be accepted that there is a strong public interest in the finality of judgments once entered. However, this interest sits alongside other interests, namely that of a just result to litigation. It is our view that the Court retains a discretion in its inherent jurisdiction to control its own processes and provide an appropriate remedy when justice requires. … Rule 242 should be read liberally. The Court’s discretion is only fettered by the words “if satisfied that the justice of the case so requires”.
[36] Players Pty Ltd (In Liquidation) (Receivers Appointed) & Ors v Clone Pty Ltd (2013) 115 SASR 547.
[37] Ibid at [69].
The Full Court’s conclusion that 6SCR242 should not be read subject to any implied limitation does not, of course, detract from the importance of the finality of litigation in determining what the interests of justice require. Importantly, 6SCR242 is not a vehicle for re-running a case over and over again. The power must be exercised with an awareness of the respective roles of the trial and appellate courts.[38] The rule is available to remedy serious procedural irregularities and decisions made in ignorance of a decisive matter, whether of law or fact. However, it cannot be used to put the same arguments, on essentially the same material, which were put to the trial court in order to have determinations of fact, or law, or of mixed fact and law, set aside. That is the function of an appeal court.
[38] McAdam v Robertson (1999) 73 SASR 360 at [38]-[40].
The appellant’s primary contentions on this application to re-open are that the decision of the Full Court should be set aside because the conduct of the Board, its solicitors and counsel, both before the Tribunal and in the Full Court appeal denied him a fair hearing.
Complaints about the Board

The appellant makes various complaints in respect of the Board’s carriage of the Tribunal hearing including:
·failing to call various witnesses;
·failing to disclose various documents;
·making allegations of misconduct without any proper basis; and
·failing to disclose expert handwriting reports and other correspondence.
The appellant asserts that both the Board and the Tribunal failed in their duty to investigate the charges against him thoroughly. The appellant contends that the duty to “investigate” is not satisfied by conducting an adversarial hearing.
I note that this contention was made by the appellant on the first 6SCR242 application. The Full Court rejected that contention for the following reasons:[39]
A Further Change of Position - An Investigative Approach
When counsel appearing on the application to re-open was confronted with these difficulties, it was submitted for the first time that the Tribunal, as part of its investigative role, should have given the affidavits testimonial effect. It was then contended that this Court, on the appeal, should also have given the affidavits testimonial effect notwithstanding that both parties conducted their cases before the Tribunal on the appeal on the basis they were not to be given testimonial effect.
Counsel appearing for the Board, who had appeared throughout the proceedings, rejected these contentions. It was accepted that, in general terms, the Tribunal was involved in an investigation. However, it was pointed out that the proceeding before the Tribunal was conducted as an adversary proceeding. Both the Board and Mr Viscariello were represented by senior counsel. The proceeding before the Tribunal was treated as being comparable to the hearing of a complaint and conducted on the basis that the Board carried a high onus before findings of unprofessional conduct could be made. Attention was drawn to what is described as the Briginshaw principle.
The suggestion that the Tribunal was under a duty to give the affidavits of Ms Hamilton-Smith testimonial effect because in part it was undertaking an investigative role is rejected. The position is that neither party sought that the affidavits be given any testimonial effect. They were before the Tribunal only as evidence of a historical event. Before this Court on the appeal, no submission was made that, because of the investigative role of the Tribunal, the affidavits were to have testimonial effect. This submission also represents a change of position. As earlier noted, the parties were represented by senior counsel before the Tribunal and it may be reasonably inferred that considered decisions were made with respect to the use to which the affidavits could be put. Also, as earlier noted, these matters were confirmed by the same counsel appearing on the appeal.
The Application to Re-open – Further Contentions
On the hearing of the application to re-open, Mr Viscariello advanced further contentions. These contentions were contained exclusively in the written summary of argument and were not the subject of oral submissions. His counsel accepted that these contentions were dependent on the primary contention concerning Ms Hamilton-Smith’s affidavits addressed above. They would only be relevant upon Mr Viscariello first establishing that the error concerning Ms Hamilton-Smith’s directorship of J & L Developments in 2003 was material to the disposition of the appeal. We have earlier held that this error does not affect the disposition of the appeal. The further contentions do not arise.
We do not consider that any of the further contentions establish error on the part of this Court in its dismissal of Mr Viscariello’s appeal. Properly understood, each contention amounts to no more than an attempt to reargue matters already the subject of this Court’s ruling. We consider it appropriate to add the following further comments in respect of several of the contentions.
(citations omitted)
[39] Viscariello v Legal Practitioners Conduct Board (No 2) [2013] SASCFC 27 at [34]–[38].
Further submissions by the appellant
Subsequent to the hearing of this matter the appellant sought leave to file submissions which addressed the recent case of Walsh v Legal Profession Conduct Commissioner.[40] Those submissions were filed with the consent of the first respondent, on the proviso that orders were made for the filing of responding submissions.
[40] [2016] SASFC 52.
Walsh was an appeal to this Court against findings by the Legal Practitioners Disciplinary Tribunal that a practitioner was guilty of unsatisfactory and unprofessional conduct.
In Walsh, the Court addressed the nature of an appeal under s 86 of the LPA.[41] The decision in Walsh is consistent with the earlier decisions of this Court.
[41] Walsh v Legal Profession Conduct Commissioner [2016] SASFC 52 at [11].
The appellant’s further contentions in respect of Walsh can be summarised as follows:
1The Full Court, in Viscariello v Legal Practitioners Conduct Board (No 2),[42] made a new series of findings;
2The new findings included that the two affidavits sworn by Ms Hamilton-Smith were tendered for “history only” and not for ‘testamentary effect’;
3The Full Court was not permitted to substitute its finding of fact for the finding of the Tribunal unless it has been demonstrated that the finding made by the Tribunal was in error;
4The Full Court failed to give any reasons for its “new findings”, including as to the use to which Ms Hamilton-Smith’s affidavit should be put;
5Particularly, the full Court failed to give reasons as to the errors made by the Tribunal, which permitted it to substitute its own findings.
On the basis of the above, the appellant contends that the Full Court fell into error.
[42] [2013] SASCFC 27.
It is clear from the above passages that the Full Court did not make ‘new findings’ on this issue. It determined only that the affidavit material sworn by Ms Hamilton-Smith was received by the Tribunal only as part of the history of the matter. The Full Court was entitled to so find on the record of the proceedings before the Tribunal.
On this ground, the appellant seeks to re-argue an issue on which he lost in the first 6SCR242 application and on a basis contrary to the concessions made by his counsel. In any event, the affidavits of Ms Hamilton-Smith, even if accepted as evidence of the facts stated therein, carried no material weight. They were self‑serving statements as to a primary issue which was disputed. The appellant has not demonstrated that the Court proceeded in ignorance of any fact. Accordingly, the appellant’s submissions in respect of this matter fail.
Section 82 and s 84 of the LPA, as it then was, provided:
82—Inquiries
(1)A charge may be laid under this section alleging unprofessional or unsatisfactory conduct—
(a)     on the part of any legal practitioner; or
(b)     on the part of any former legal practitioner who was at the time of the alleged unprofessional or unsatisfactory conduct a legal practitioner.
(2)A charge may be laid under this section by—
(a)     the Attorney-General; or
(b)     the Board; or
(c)     the Society; or
(d)     a person claiming to be aggrieved by reason of the alleged unprofessional or unsatisfactory conduct.
…
(4)Where a charge has been laid under this section, the Tribunal must, subject to subsection (5), inquire into the conduct of the legal practitioner or former legal practitioner to whom the charge relates.
…
(6)If after conducting an inquiry under this section the Tribunal is satisfied—
(a)     that a legal practitioner is guilty of unprofessional or unsatisfactory conduct it may, subject to subsection (6a), exercise any one or more of the following powers:
(i)it may reprimand the legal practitioner;
…
(ii)it may order the legal practitioner to pay a fine not exceeding $10 000;
(iii)it may make an order imposing conditions on the legal practitioner's practising certificate (whether a practising certificate under this Act or an interstate practising certificate)—
…
(iv)it may make an order suspending the legal practitioner's practising certificate (whether a practising certificate under this Act or an interstate practising certificate) until the end of the period specified in the order (not exceeding six months);
(v)it may recommend that disciplinary proceedings be commenced against the legal practitioner in the Supreme Court; or
(b)     that a former legal practitioner was, while he or she remained a legal practitioner, guilty of unprofessional conduct, it may order the former legal practitioner to pay a fine not exceeding $10 000; or
(c)     that a former legal practitioner was, while he or she remained a legal practitioner, guilty of unsatisfactory conduct, it may order the former legal practitioner to pay a fine not exceeding $5 000.
(6a)If a legal practitioner is found guilty only of unsatisfactory conduct, the Tribunal may not impose a fine or suspension on the practitioner or recommend that disciplinary proceedings be commenced against the practitioner in the Supreme Court.
(6b)A condition imposed on a practising certificate or interstate practising certificate pursuant to an order under this section may be varied or revoked at any time on application by the legal practitioner.
(7)After completing an inquiry under this section, the Tribunal must transmit the evidence taken by the Tribunal on the inquiry together with a memorandum of its findings to the Attorney-General, the Society and the Board.
(8)If, after conducting an inquiry into a charge alleging unprofessional conduct by a person who is a legal practitioner or former legal practitioner, the Tribunal—
(a)     is not satisfied that the person is guilty of unprofessional conduct; but
(b)     is satisfied that the person is guilty of unsatisfactory conduct,
the Tribunal must find the person not guilty of unprofessional conduct, but may find the person guilty of unsatisfactory conduct.
…
84—Powers of Tribunal
(1)For the purposes of an inquiry under this Part, the Tribunal may—
(a)     by summons signed on behalf of the Tribunal by a member of the Tribunal, require the attendance before the Tribunal of any person (including a party to the proceedings) whom the Tribunal thinks fit to call before it; or
(b)     by summons signed on behalf of the Tribunal by a member of the Tribunal, require the production of documents; or
(c)     inspect any documents produced before it, and retain them for such reasonable period as it thinks fit, and make copies of any of them, or of any of their contents; or
(d)     require any person to make an oath or affirmation to truly answer all questions put by the Tribunal, or by any person appearing before the Tribunal, relevant to any matter being inquired into by the Tribunal (which oath or affirmation may be administered by any member of the Tribunal); or
(e)     require any person appearing before the Tribunal (whether summoned to appear or not) to answer any relevant question put by any member of the Tribunal, or by any other person appearing before the Tribunal; or
(f)    require any person appearing before the Tribunal (whether summoned to appear or not) to prepare a document (including a bill of costs in taxable form) as reasonably directed by the Tribunal, or to comply with any other reasonable direction issued by the Tribunal in furtherance of the inquiry.
…
(7)In the course of an inquiry, the Tribunal may—
(a)     receive in evidence a transcript of evidence taken in proceedings before a court of any State (and any exhibits referred to in such a transcript), and draw any conclusions of fact from the evidence that it considers proper;
(b)     adopt, as in its discretion it considers proper, any findings, decision, judgment, or reasons for judgment, of any such court that may be relevant to the proceedings.
The nature of proceedings before the Tribunal, and the powers conferred on the Tribunal for the purpose of carrying out its inquiry, were considered by the Supreme Court in the case of LPCC v Trueman.[43] In that case Lander J described proceedings before the Tribunal as ‘an admixture of adversarial proceedings and inquisitorial proceedings’.[44]
[43] The Legal Practitioners Complaints Committee v Trueman [1996] SASC 5910.
[44] [1996] SASC 5910 at [83].
The appellant contends that the Tribunal is required to make every inquiry and to ‘leave no stone unturned’. That submission must be rejected.
Sections 82 and 84 of the LPA confer wide powers on the Tribunal which may be described as inquisitorial. However, the LPA does not impose an obligation or duty on the Tribunal to use those inquisitorial powers to their full extent in every case. The Tribunal maintains a discretion as to the form of inquiry it will undertake.
On some occasions it may be appropriate for the Tribunal to seek additional evidence and even inquire into matters which have not been charged. On other occasions the Tribunal may well limit its inquiry to the complaints made and determine them on the evidence called by the parties. In the ordinary course, in cases in which both the complainant and the legal practitioners are represented, proceeding on a largely adversarial basis will facilitate an expeditious hearing and just resolution of the complaint by the Tribunal.
The appellant was represented by senior and junior counsel before the Tribunal. The appellant called witnesses before the Tribunal. At all times, it was open to the appellant to call as witnesses the persons he claims should have been called by the Tribunal or to provide other evidence.
The witnesses which the appellant contends should have been called by the Tribunal are:
·Ms Hamilton-Smith;
·his partner in his law firm before whom the Hamilton-Smith affidavits appeared to have been sworn;
·his counsel in the proceedings in the Development Action; and
·his accountant’s assistant.
They are all witnesses which the Tribunal could properly expect Mr Viscariello to call if their testimony was likely to assist him. It was not the role of the Tribunal to supervise the appellant’s defence of the complaint. If the Tribunal interfered in the adversarial contest framed by the parties, the proceedings would have been fraught with danger of error and miscarriage.
Complaints about counsel for the Board
The appellant complains that Mr Whitington QC and, to a lesser extent, Ms Walker, who were the Board’s senior and junior counsel respectively, misconceived their duties and obligations, failed to conduct themselves in accordance with the Bar Rules, and secured the recommendation made by the Tribunal through surprise, malpractice and fraud.
The burden of the complaint against counsel for the Board, particularly Mr Whitington QC, is that he made serious allegations of misconduct against the appellant in the course of the Tribunal hearing without a proper foundation. It is necessary to set out some additional background in relation to Tribunal hearing to understand the appellant’s complaint.
As I earlier observed, the Hamilton-Smith affidavits were placed before the Tribunal.
In the course of the Tribunal hearing, Mr Whitington QC informed the Tribunal that the Board had received information from Ms Hamilton-Smith to the effect that she had not signed the affidavits and knew nothing of the contents. Mr Whitington QC subsequently cross-examined the appellant on that information. The issue was also raised in the Board’s closing submissions. Ultimately, the Board did not adduce evidence to prove that allegation and the Tribunal made no finding on it.
The appellant has not shown that the Board’s counsel did not have material on which he could properly raise the matter. The failure to prove the allegation does not mean that counsel acted improperly in raising it. Moreover, if, in the course of hearing a complaint against a legal practitioner, other unprofessional conduct is discovered, the Tribunal can, and should, investigate that conduct. The inquiry conducted by the Board need not be limited to the complaint first made. Of course, no finding of misconduct should be made based on any such material without putting the legal practitioner on notice that the conduct is being investigated and giving him or her an opportunity to answer any additional charge.
Accordingly, once the affidavits were before the Tribunal, and the information provided to the Board by Ms Hamilton-Smith had come to light, there was an entirely reasonable basis on which to investigate the suspected unprofessional conduct of the appellant in connection with the affidavits. It was also proper to test Mr Viscariello’s credibility by cross-examination on that material.
This ground must be dismissed.
Fresh findings of fact
The appellant also relies on fresh evidence said to have been revealed by the decision in Viscariello v Macks.[45] It will be remembered that on the first application to re-open, the Full Court dismissed a ground which relied on the evidence given by Mr Macks in that case.
[45] Viscariello v Macks [2014] SASC 189 (Macks).
In essence, the appellant says that the findings made in the decision in Macks corroborate his evidence before the Tribunal as to the purpose of the amendment of the Trust Deeds.
The Macks action concerned the administration of two companies (the companies) of which the appellant was a director. The appellant brought an action against Mr Macks, the administrator and then liquidator of the companies, claiming declarations, damages and statutory remedies for what he alleges was Mr Macks’ wrongful conduct as voluntary administrator and then liquidator of the companies, and seeking orders removing Mr Macks as liquidator. I held in Macks that the defendant had breached his statutory duties under the Corporations Act 2001 (Cth).
One aspect of the defendant’s conduct considered in Macks was an action for debt he brought, and prosecuted at great expense, against Ms Hamilton‑Smith. In summary, Mr Macks pursued Ms Hamilton-Smith for debts owed to the companies and in so incurred legal expenses and charged fees many times greater than the claimed debt. I ultimately found that the prosecution of that litigation was unreasonable and not in the interests of the companies.
The appellant contends that the findings in Macks corroborate his evidence to the effect that the real purpose of the costs evasion conduct was to protect Ms Hamilton-Smith from the claims made by Mr Macks.
That submission is fallacious. The fallacy was exposed in Viscariello v Legal Practitioners Conduct Board (No 2) in the paragraphs I have reproduced above. The fact of the litigation against Ms Hamilton-Smith and its potential adverse financial consequences were well‑known to Mr Viscariello at the time of the Tribunal hearing. Indeed, its protracted course was, in no small part, due to the obstructionism of Ms Hamilton‑Smith aided by Mr Viscariello. At the Tribunal hearing, Mr Viscariello’s defence of the costs evasion conduct charge included a claim that the trust deeds were amended for general asset protection purposes. Mr Viscariello testified that his concerns included the litigation between Ms Hamilton-Smith and the companies instigated by Mr Macks:
QI’m asking you now what in your thinking was the significance of the change in the appointor.
ABecause Ms Hamilton-Smith was being, was involved in a lot of litigation and it was highly probable that she would be bankrupted.
QThat was quite a separate issue from the change to the indemnity, wasn’t it.
AYes.
QWhat was the significance of bankruptcy in relation to the apparent appointment.
AI say it was significant if she was made bankrupt.
QYes, but how.
AIf she was appointor, it could be argued that she controlled the trust and therefore the trustee could try and attack the trust assets.

It was for Mr Viscariello to lead such further evidence about Ms Hamilton‑Smith’s potential risk in the litigation as he wished. The subsequent decision in Macks passed judgment on the propriety of Mr Macks’ prosecution of the claim. It is not evidence in itself and it is certainly not evidence about what motivated the appellant.
The evidence on which the findings in Viscariello v Macks were based was well-known to Mr Viscariello. It was not adduced by his counsel before the Tribunal, probably for the good reason that the removal of Ms Hamilton-Smith as an appointor, as the Full Court pointed out, is quite unrelated to the purpose of the removal of the indemnity, other than that, it was convenient to attend to both at the same time.
Conclusion on 6SCR242 application
It is accepted that there is a strong public interest in the finality of judgments once entered.[46] The power conferred under 6SCR242 must only be exercised if the Court is satisfied that the justice of a case so requires.
[46] Players Pty Ltd (In Liquidation) (Receivers Appointed) & Ors v Clone Pty Ltd (2013) 115 SASR 547 at [69].
I do not propose to traverse each of the matters which the appellant complains of and how those matters were dealt with on the last application to re‑open. A summary can be found at Appendix A to this judgment. Suffice to say that I am satisfied that the appellant has had more than ample opportunity to ventilate his concerns, and has done so, in other proceedings before this Court, and in his subsequent application for before the High Court. This is an additional factor going to whether or not the justice of the case should result in the power under 6SCR242 being utilised. It undoubtedly should not.
For the preceding reasons, the application pursuant to 6SCR242 that the Court set aside its judgment in the matter of Viscariello v Legal Practitioners Conduct Board[47] is refused.
[47] Viscariello v Legal Practitioners Conduct Board [2012] SASCFC 147.
Conclusion
The appeal against the decision of Parker J dated 7 August 2015 declining to extend time to allow the appellant to seek permission to proceed with an application for Judicial Review is dismissed.
The 6SCR242 application, seeking that the Court set aside an earlier decision of the Full Court, is refused.
NICHOLSON J: I have had the advantage of reading the reasons of the Chief Justice with which I agree. I would dismiss the appeal from Parker J’s decision declining to allow permission to proceed with the application for Judicial Review. I would refuse the application under Rule 242 of the Supreme Court Civil Rules 2006.
CHIEF JUDGE MUECKE: I agree with the conclusions of the Chief Justice and with his reasons for them. I would dismiss the appeal from Parker J’s decision declining to allow permission to proceed with the application for Judicial Review. I would refuse the application under Rule 242 of the Supreme Court Civil Rules 2006.
APPENDIX A
Submissions made by Kendall QC on 23 February 2013 in the matter of Viscariello v Legal Practitioners Conduct Board (No 2)[48]
[48] [2013] SASCFC 27.

Issue

Transcript Reference

The Tribunal had an inquisitorial function

T36-38

The Board failed to inform the Tribunal that the handwriting reports were inconclusive

T50

The submission was made to the Tribunal that the affidavits weren’t executed by Ms Hamilton-Smith

T44-T50

The Board failed to call Mr McNamara

T51

The Board failed to inform the Tribunal of Mr McNamara’s evidence in response to the enquiry about the affidavits

T55

The Board failed to, and should have, put all of the evidence to the Tribunal

T51, T55-58

The Tribunal failed to deal with the authenticity of Ms Hamilton-Smith’s affidavits

T60

Ms Hamilton-Smith’s affidavits should have been in evidence for both historical and testimonial effect

T33, T79

The Board’s submission on the authenticity of Ms Hamilton-Smith’s affidavits poisoned the Tribunal’s thinking

T111-112

The Board is a Model Litigant

T98

Issue	Transcript Reference
The Tribunal had an inquisitorial function	T36-38
The Board failed to inform the Tribunal that the handwriting reports were inconclusive	T50
The submission was made to the Tribunal that the affidavits weren’t executed by Ms Hamilton-Smith	T44-T50
The Board failed to call Mr McNamara	T51
The Board failed to inform the Tribunal of Mr McNamara’s evidence in response to the enquiry about the affidavits	T55
The Board failed to, and should have, put all of the evidence to the Tribunal	T51, T55-58
The Tribunal failed to deal with the authenticity of Ms Hamilton-Smith’s affidavits	T60
Ms Hamilton-Smith’s affidavits should have been in evidence for both historical and testimonial effect	T33, T79
The Board’s submission on the authenticity of Ms Hamilton-Smith’s affidavits poisoned the Tribunal’s thinking	T111-112
The Board is a Model Litigant	T98