Viscariello v Legal Practitioners Disciplinary Tribunal; Viscariello v Legal Profession Conduct Commissioner

The appellant, Mr Viscariello, sought to set aside a judgment of the Full Court of the Supreme Court of South Australia. The dispute arose from his conduct in two matters: the "Development Action" concerning a planning dispute and a separate action brought under the *Fences Act 1975*. The Legal Practitioners Disciplinary Tribunal had found him guilty of unprofessional conduct in the Development Action and unsatisfactory conduct in the Fences Act matter.

The primary legal issue before the Full Court was whether it possessed the power to set aside its own previous judgment, and if so, in what circumstances such a power should be exercised. This involved considering the principles governing the reopening of appeals, particularly in light of the public interest in the finality of litigation and the adversarial nature of legal proceedings.

The Court referred to its previous decision in *McAdam v Robertson*, which in turn drew upon High Court authority. It affirmed that the power to set aside a judgment is discretionary and should be exercised with great caution. Such a power is not intended to allow a party to improve their arguments or simply to demonstrate that a decision was wrong. However, a misapprehension of a significant fact or an important principle of law that was overlooked could be a basis for exercising this power, provided it is not merely an attempt to persuade the court to change its mind on a matter already decided. The Court emphasised that the discretion is "fairly closely confined."

The Court ultimately determined that it had the power to review its decision, particularly as the judgment had not yet been formally drawn up. However, the exercise of this power required a high degree of caution due to the strong public interest in the finality of litigation. The Court indicated that it would only be exercised in exceptional circumstances, such as where a significant legal principle was overlooked or there was a clear misapprehension of a material fact.