Viscariello v Legal Profession Conduct Commissioner

[2021] SASCFC 24

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

VISCARIELLO v LEGAL PROFESSION CONDUCT COMMISSIONER

[2021] SASCFC 24

Judgment of The Full Court  

(The Honourable Justice Lovell, the Honourable Justice Hughes and the Honourable Auxiliary Justice Tilmouth)

14 May 2021

ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - MANDAMUS - DISCRETION OF COURT AND MATTERS PRECLUDING RELIEF - DISCRETION TO REFUSE RELIEF

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FURTHER EVIDENCE - EVIDENCE NOT AVAILABLE AT HEARING

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - PARTICULAR CASES - OTHER MATTERS - COSTS

PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - GENERALLY

The appellant appeals two judgments of a single judge of the Supreme Court: the substantive proceedings dismissing the appellant’s application for judicial review and an adverse costs order.

The appellant had made numerous professional conduct complaints against various members of the legal profession from as early as 2006. The complaints were initially made to the Legal Practitioner’s Conduct Board ("the Board"). Legislative amendments in 2014 replaced the Board with the Legal Profession Conduct Commissioner ("the Commissioner"). The inaugural Commissioner was conflicted with the appellant, and subsequently investigations of the appellant’s outstanding complaints were delegated. Sporadic developments of the appellant’s complaints occurred between 2006 and 2019, when the appellant commenced proceedings in the Supreme Court.

The appellant made an application for judicial review of the Commissioner’s alleged failure to investigate his complaints pursuant to the Commissioner’s statutory duty under s 77B of the Legal Practitioners Act 1981. The appellant contended that the undue delay in investigating his complaints warranted an order of mandamus compelling the Commissioner to investigate his complaints, and further amounted to maladministration. The appellant also sought declarations of invalidity regarding some of the Commissioner’s delegations, previously held as unlawful but nonetheless not invalid.

The primary judge dismissed the appellant’s application for judicial review and refused to make orders of mandamus to compel the Commissioner to investigate his complaints. In dismissing the application, the primary judge held that there was no evidence that the Commissioner had actually or constructively failed to discharge his statutory duty, as alleged. Further, the primary judge did not find the Commissioner or his office had engaged in maladministration. The primary judge further refused to make declarations of invalidly regarding the challenged delegations made by the Commissioner. An adverse costs order was also made against the appellant.

The appellant articulated 35 grounds of appeal, which as agitated on appeal, distil to complaints that the primary judge erred by:

1. Failing to grant mandamus compelling the Commissioner to investigate the complaints in light of the undue delay in dealing with them;

2. Failing to find that the delays amounted to maladministration;

3. Finding the subject delegations were not invalid;

4. Failing to afford the appellant procedural fairness; and

5. In making the adverse cost order against the appellant.  

The appellant's position rested largely upon interpretation of transitional provisions of the Legal Practitioners (Miscellaneous) Amendment Act 2013.

The respondent contended no such errors had been made by the primary judge. An application was made by the respondent to adduce fresh evidence on appeal of final determinations made by the Commissioner’s delegate occurring after the primary claim was heard, supporting the conclusion that the present appeal was futile.

Held, per Tilmouth AJ (Lovell and Hughes JJ agreeing), allowing the respondent’s application for fresh evidence pursuant to r 215.1 of the Uniform Civil Rules 2020 (SA).

Held, per Tilmouth AJ (Lovell and Hughes JJ agreeing), dismissing the appeal:

1. The primary judge did not err in dismissing the application for judicial review or in concluding that any failure to fulfil the statutory duty to properly investigate by the Board became the responsibility of the Commissioner;

2. The application for judicial review was bound to fail in any event on the discretionary grounds of futility;

3. The primary judge did not err, and was within his discretion, in ordering an adverse costs judgment against the appellant.

Acts Interpretation Act 1915 (SA) s 16, 27(3); Australian Broadcasting Corporation Act 1983 (Cth) s 70; Health Insurance Act 1973 (Cth) ss 84(3), 84(5); Independent Commission Against Corruption Act 2012 (SA) s 5(4); Legal Practitioners Act 1981 (SA) Act No. 59 of 1981 ss 4, 7, 68–88; Legal Practitioners Act 1981 (as at 01/09/13-30/06/14) (SA) ss 74, 76, 77, 77AB, 77B, 78, 82, 86, 89; Legal Practitioners Act 1981 (SA) (as at 01/07/14-24/09/14) ss 68, 69, 72, 77H, 77J, 77L; Legal Practitioners (Miscellaneous) Amendment Act 1996 (SA) s 16; Legal Practitioners (Miscellaneous) Amendment Act 2013 Schedule 2 Part 4; Legal Profession Act 2004 (NSW) ; Public Sector (Honesty and Accountability) Act 1995 (SA) s 17; Stevedoring Industry Acts (Termination) Act 1977 (Cth) s 14; Supreme Court Civil Rules 2006 (SA) r 200; Uniform Civil Rules 2020 (SA) r 215.1, referred to.
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Al-Kateb v Godwin (2004) 219 CLR 562; Attorney-General (SA) v Tichy (1982) 30 SASR 85; Australasian Meat Industry Employees Union; Ex parte Ferguson (1986) 67 ALR 491; Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454; Australian Institute of Professional Education Pty Ltd v Australian Skills Quality Authority (2016) 156 ALD 224; [2016] FCA 814; Blencoe v British Columbia (Human Rights Commission) [2000] 2 SCR 307; BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530; CDJ v VAJ (No 1) (1998) 197 CLR 172; Church of Scientology Inc v Woodward (1982) 154 CLR 25; Clayton v Bant [2020] HCA 44; Commonwealth Bank of Australia v Quade (1991) 178 CLR 134; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Esber v The Commonwealth of Australia (1991–1992) 174 CLR 430; Greater Wollongong City Council v Cowan (1955) 93 CLR 435; Koon Wing Lau v Calwell (1949) 80 CLR 533; Kutlu v Director of Professional Service Review (2011) 197 FCR 177 ; Lawless v The Queen (1979) 142 CLR 659; Legal Practitioners Conduct Board v Viscariello [2013] SASCFC 37; Legal Profession Conduct Commissioner v Richardson (2016) 125 SASR 152; Macks v Viscariello (2017) 130 SASR 1; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Moyes v J & L Development Pty Ltd (No 2) [2007] SASC 261; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470; O’Reilly, Re; Ex parte Australena Investments Pty Ltd; sub nom Commissioner of Taxation (Cth), Re; Ex parte Australena Investments Pty Ltd (ALR), Commissioner of Taxation (Cth), Re; Ex parte Australena Investments Pty Ltd (ATR) (1983) 58 ALJR 36; Oliveira v The Attorney-General (Antigua and Barbuda) [2016] UKPC 24; Orr v Holmes (1948) 76 CLR 632; Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389; R v District Court of Sydney; Ex parte White (1966) 116 CLR 644; R v Evans (1890) 54 JP 471; R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw (1952) 1 KB 338; R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228; Ratten v The Queen (1974) 131 CLR 510; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Ruhani v Director of Police (2005) 222 CLR 489; SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; Taylor v Council of Law Society of New South Wales [2020] NSWCA 273; The Queen v Kelly; Ex-parte Harvey (1985) 38 SASR 93; Thornton v Repartriation Commission (1981) 35 ALR 485; Tickle Industries Pty Ltd v Hann (1974) 130 CLR 321; Unitec Institute of Technology v Attorney-General [2006] 1 NZLR 65; Viscariello v Legal Practitioners Conduct Board [2014] SASC 53; Viscariello v Legal Profession Conduct Commissioner [2015] SASC 132; Viscariello v Legal Profession Conduct Commissioner (2017) 128 SASR 387; Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111; Viscariello v Legal Profession Conduct Commissioner (No 2) [2019] SASC 165; Viscariello v Macks (2014) 103 ACSR 542; Warren v Coombes (1979) 142 CLR 531; Wei v The Minister for Immigration and Border Protection (2015) 257 CLR 22; Yarra City Council v Metropolitan Fire and Emergency Services Board and Others (2017) 223 LGERA 135; [2017] VSCA 194, considered.

VISCARIELLO v LEGAL PROFESSION CONDUCT COMMISSIONER
[2021] SASCFC 24

FULL COURT – Lovell, Hughes JJ and Tilmouth AJ

1. LOVELL J:     I agree with the reasons of Tilmouth AJ and the orders he proposes.

2. HUGHES J:     I agree with the reasons of Tilmouth AJ and the orders he proposes.

   TILMOUTH AJ:

   Overview

3. Mr John Viscariello brings the within appeal from a decision of a single judge refusing his application for judicial review.[1] Mr Viscariello sought orders at first instance compelling the Legal Profession Conduct Commissioner[2] to investigate numerous complaints made by him, initially to the Legal Practitioners Conduct Board[3] and subsequently the Commissioner himself, under successive versions of the Legal Practitioners Act 1981 (SA).

   [1]     Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111.

   [2]     Hereafter “the Commissioner”.

   [3]     Hereafter “the Board”.

4. The principal relief sought in this appeal includes declarations that the Commissioner failed to discharge the mandatory statutory duty to investigate those complaints, that a number of delegations purportedly made by the Commissioner be declared of no legal force or effect, as well as the setting aside of an adverse costs order.[4]

   [4]     See Fourth Amended Statement of Claim.

   Underlying history

5. What follows is no more than a relatively brief account of the more significant events, sufficient to understand the context in which the central issues arise in this appeal, culled from a very long, complicated and protracted chain of events.

6. Mr Viscariello was a legal practitioner when he was found guilty on 3 April 2012 by the Board of unprofessional conduct and struck off[5] for giving false and dishonest evidence in Supreme Court proceedings presided over by Debelle J.[6] Beforehand, various complaints were made by Mr Viscariello himself (or effectively on his behalf and later adopted by him as his own) to the Board as it then was. These complaints were first made on 13 January 2006.

   [5]     Legal Practitioners Conduct Board v Viscariello [2013] SASCFC 37.

   [6]     Moyes v J & L Development Pty Ltd (No 2) [2007] SASC 261 at [16], [19]–[20].

7. Mr Viscariello commenced proceedings against the Board on 19 December 2013 in the Supreme Court, seeking the orders in the nature of mandamus compelling the Board to perform the statutory duty to investigate those complaints pursuant to s 76 of the Legal Practitioners Act 1981, as it was in force at that time. At the same time, he filed an interlocutory application seeking permission to proceed with the action as required by r 200 of the Supreme Court Civil Rules 2006 (SA), which was subsequently granted by Nicholson J.[7]

   [7]     Viscariello v Legal Practitioners Conduct Board [2014] SASC 53.

8. On 1 July 2014, the Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA) (the “2014 Amendments”),[8] effectively abolished the Board and replaced it with the Office of Legal Professional Conduct Commissioner. This amendment preserved the statutory obligation to investigate complaints in s 77B thereof. Mr Gregory May was thereafter appointed Commissioner. He commenced unofficial duties on 1 February 2014, to allow for a period of transition before the 2014 Amendments came into effect on 1 July 2014.

   [8]     No 44 of 2013, assented to on 3 October 2013.

9. Before his appointment, Mr May was Chief Operating Partner in the legal firm Minter Ellison, solicitors for the liquidator Mr Macks. It was on Mr Macks’ instructions that proceedings were instituted against a former domestic partner of Mr Viscariello for the non‑payment of a debt proven in the administration of the company, Bernsteen Pty Ltd. Mr Macks was appointed liquidator of Bernsteen Pty Ltd, of which Mr Viscariello was the sole director and secretary. The complaint of 13 January 2006 involved allegations as to the conduct of several solicitors at Minter Ellison and senior counsel engaged by them in the course of those proceedings. The alleged misconduct of Mr Macks was later also the subject of challenge by Mr Viscariello in the Supreme Court (the “Macks litigation”).[9]

   [9]     See Macks v Viscariello (2017) 130 SASR 1; Viscariello v Macks (2014) 103 ACSR 542.

10. The proceedings filed on 19 December 2013 were originally issued against the Board. Orders were made by the Chief Justice on 1 July 2014 substituting the Commissioner for the Board as respondent, given the 2014 Amendments. Having assumed responsibility for the conduct of those proceedings as Commissioner, Mr May wrote to Mr Viscariello on 9 July 2014 acknowledging he was conflicted because of his previous position at Minter Ellison during the course of the Macks litigation. Mr May expressed an intention to delegate his powers and functions in relation to investigation of the complaints. As a consequence, the Commissioner purported to make a number of delegations to various legal practitioners.

11. On 13 August 2014, Mr Viscariello filed an interlocutory application seeking amongst other things, declarations that the delegations were unlawful. The application was heard by Parker J, who found one of the delegations (namely to a Mr Bourne) was unlawful on the ground that it was not authorised by the Attorney-General in breach of s 17 of the Public Sector (Honesty and Accountability) Act 1995 (SA). Parker J nevertheless held the delegations were not invalid and therefore dismissed the application.[10]

    [10]   Viscariello v Legal Profession Conduct Commissioner [2015] SASC 132 at [75]–[76].

12. Mr Viscariello appealed Parker J’s decision to the Full Court. Mr Viscariello’s appeal to the Full Court was allowed by a majority, who upheld the conclusion that the delegation was in breach of s 17 of the Public Sector (Honesty and Accountability) Act 1995.[11] In addition, the Full Court found that the other challenged declarations also went beyond the terms of authorisations given by the Attorney-General, but similarly declined to declare the delegations invalid. It was following this decision that Mr Viscariello was granted permission by the primary judge to amend his claim to include the validity of those delegations.

    [11]   Viscariello v Legal Profession Conduct Commissioner (2017) 128 SASR 387.

13. Thus, the claim before the primary judge concerned not only an application for judicial review of the Commissioner’s alleged failure to investigate Mr Viscariello’s complaints pursuant to the statutory duty under s 77B of the Legal Practitioners Act 1981, but also included the validity of the delegations made by the Commissioner in relation to the said complaints.

    Decision of primary judge

14. The primary judge dismissed Mr Viscariello’s application for judicial review and consequently refused to issue an order of mandamus compelling the Commissioner to investigate Mr Viscariello’s complaints. He considered the evidence did not support a conclusion that the Commissioner actually or constructively refused to discharge the statutory duty to investigate those complaints, as alleged. The primary judge further held that the delegations made by the Commissioner as complained of in Mr Viscariello’s amended claim were not invalid. An adverse costs order was later made against Mr Viscariello.

    The appeal

15. Mr Viscariello appeals to the Full Court against the substantive decision of the primary judge[12] and the adverse costs order.[13] Mr Viscariello contends that the appeal be allowed with costs and that this Court hold that mandamus should have issued, based on unreasonable delay, and declare the delegations to Mr Bourne invalid.

    [12]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111.

    [13]   Viscariello v Legal Profession Conduct Commissioner (No 2) [2019] SASC 165.

16. Mr Viscariello’s Second Amended Notice of Appeal alleged 35 grounds of appeal, of which grounds 26, 27, 28, 32, 33 and 34 were not pursued. The grounds of appeal condense into complaints that the primary judge erred in: failing to grant declarations compelling the Commissioner to investigate the complaints in light of the undue delay in dealing with them, failing to find that the delays amounted to maladministration, finding the subject delegations were not invalid, failing to afford procedural fairness and erred in making the adverse cost order against Mr Viscariello.

17. The principal contention advanced on Mr Viscariello’s behalf in this appeal, is that the primary judge erred in failing to take proper account of the entire course of the complaints prior to the 2014 Amendments, and as a consequence, did not engage with the requirements of due process in considering his complaints to the point that the proceedings were invalid. Embedded within this submission is that delays, as well as the failure to expeditiously or properly investigate those complaints, were so protracted that there was in effect, a constructive failure to exercise the jurisdiction to investigate those complaints to the point that they became amenable to judicial review or equivalent orders to writs of mandamus quashing them. Subsidiary issues pursued on his behalf were the failure to find maladministration by the Board as well as the Commissioner, and a miscarriage in the discretion to award costs against Mr Viscariello.

18. The position of the Commissioner on appeal is that the primary judge made no such errors, and essentially that neither he nor the Board acted unreasonably, that neither refused to investigate, nor delayed investigating, the complaints and otherwise that he ultimately validly delegated his investigatory functions. The Commissioner also brings an application in this court to adduce “fresh evidence” on appeal, namely determinations of Mr Viscariello’s complaints by a duly appointed delegate made subsequent to the delivery of the primary judge’s reasons. The Commissioner’s position is that such evidence supports the conclusion that the present appeal is futile. This application is considered later in these reasons.

19. In order to analyse these contentions, it is first necessary to set out in some detail the structure, nature and functions of the superseded Legal Practitioners Conduct Board and to compare the functions and processes of the Board with those of the Commissioner under the amended scheme.

    Legal practitioner disciplinary proceedings

20. As will become apparent, the structure and processes for disciplining legal practitioners prior to and following the 2014 Amendments was quite different. As originally structured in 1981 by the Legal Practitioners Act 1981, the Legal Practitioners Complaints Committee was established to investigate complaints against legal practitioners, with the Legal Practitioners Disciplinary Tribunal (the “Tribunal”) established at the same time to hear charges of unprofessional conduct.[14] By the time of the 2014 Amendments, the former had become the Legal Practitioners Conduct Board, by virtue of s 16 of the Legal Practitioners (Miscellaneous) Amendment Act 1996 (SA).[15] As will also become apparent, under the 2014 Amendments the functions of the Board were transferred to the Commissioner.

    [14]   Act No. 59 of 1981, Part VI, ss 68–88.

    [15]Act No. 10 of 1996, coming into force on 9 May 1996, SA Government Gazette 2 May 1996, page 2396.

1. Under the previous scheme, following an investigation of a complaint and on satisfaction that there was evidence of unprofessional conduct, the Board was required to report that matter to the Attorney‑General and the Law Society of South Australia under s 77(1) of the Legal Practitioners Act 1981. The Board was empowered by s 77AB thereof to reprimand or impose conditions on legal practitioners when unprofessional or unsatisfactory conduct was regarded as “relatively minor”. Alternatively, the Board was empowered by s 74(1)(b) to refer more serious complaints to the Tribunal, established under s 78. The Tribunal also held powers to reprimand, fine, impose conditions or suspend a legal practitioner’s practising certificate, or otherwise recommend disciplinary proceedings be commenced against the legal practitioner in the Supreme Court under s 82(6) of the Legal Practitioners Act 1981.

2. A right of appeal to the Supreme Court was vested against decisions of the Tribunal pursuant to s 86 of the Legal Practitioners Act 1981. The Supreme Court’s jurisdiction included the disciplinary powers equivalent to those vested in the Tribunal, but in addition thereto, it had the power to order the name of a legal practitioner be struck off the roll of legal practitioners pursuant to s 89(2)(d) thereof.

3. Following the 2014 Amendments, the responsibility for investigations, enquiries and the conduct of disciplinary proceedings against legal practitioners was vested in the Commissioner by s 72 of the Legal Practitioners Act 1981. The Commissioner was likewise required to report evidence of unprofessional misconduct to the Attorney‑General and the Law Society of South Australia by s 77H(1) thereof. By s 77J, the Commissioner was vested with a wider range of disciplinary powers than the previous Board held. When the Commissioner considered a complaint could not be adequately dealt with, a charge was required to be laid before the Tribunal, unless that would not be in the public interest within the meaning of s 77L thereof. Otherwise an appeal to the Tribunal was available from decisions of the Commissioner.

4. It can be seen therefore that the primary responsibility for determining what was now collectively defined as “unsatisfactory professional conduct” and “professional misconduct” became the responsibility of a single person, rather than a statutory corporate body.[16] As noted, both regimes contain pathways for appeals.

   [16]   These are defined in ss 68 and 69, respectively.

5. The reasons for this complete change of process emerges clearly from the Second Reading Speech with respect to the 2014 Amendments:[17]

   The Legal Practitioners (Miscellaneous) Amendment Bill 2013 seeks to modernise the regulation of the legal profession in South Australia and provide greater harmonisation for South Australian practitioners than otherwise exists. The Bill makes substantial improvements to the disciplinary system, with a view to improving the system for both consumers and practitioners. Particular focus has been given to increasing the protections available for consumers of legal services in South Australia.

   …

   Substantial amendments are made to the disciplinary system, including replacing the present Legal Practitioners Conduct Board with a Legal Profession Conduct Commissioner, with increased powers. It is also intended to enact a system of mentoring to provide early intervention in practices where there are signs of trouble, without waiting for formal complaints to arise.

   …

   The Bill proposes to abolish the present Legal Practitioners Conduct Board and the position of Director. In their place, there is to be a Legal Profession Conduct Commissioner. As well as taking over the powers and duties of the present Board, it is proposed that the Commissioner have new powers to make binding decisions imposing sanctions without the consent of parties in some cases, and to impose a wide range of disciplinary sanctions with the consent of the practitioner. This is expected to reduce the demand on the Tribunal and to avoid the need for Tribunal proceedings where there is no dispute that the practitioner has acted wrongly.

   [17]   South Australia, Parliamentary Debates, House of Assembly, 19 March 2013, 4816–7.

   Commissioner not responsible for conduct of the Board

6. Stated in general terms, the submission mounted on behalf of Mr Viscariello was that the primary judge erred in failing to hold the Commissioner responsible or accountable for the entire course of the complaints spanning upwards of some 12 years since the first complaint, thereby unduly confining his investigations of the complaints to events succeeding his appointment. Expressed more particularly, the submission was that the primary judge erred in dismissing the action for declarations in the nature of mandamus by concluding that the Commissioner was not responsible for the previous conduct of the Board, unless the Commissioner “joined in or adopted” that conduct. Consequently, it was submitted that mandamus or equivalent should have been issued against the Commissioner on account of inordinate and unreasonable delay.

7. These contentions found heavily on the proposition that the primary judge unduly restricted the examination of the disciplinary processes when concluding that the Commissioner was not bound by prior decisions or conduct of the Board in this passage of his judgment:[18]

   The abolition of the Board renders any order in the nature of mandamus directed to it futile. Further, the fact that the Commissioner is not bound by any decision made by the Board in the conduct of the complaints made by Mr Viscariello renders it futile to focus upon any act or omission of the Board unless the Commissioner has adopted such act or omission either expressly or implicitly as his own.

   [18]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [40].

8. Counsel for Mr Viscariello next criticised the following reasoning process undertaken by the primary judge in the following portions of the judgment:[19]

   Out of an abundance of caution I have acted on the basis that Mr Viscariello’s case goes so far as to assert that the Commissioner has in some way joined in what previously occurred, assuming it did occur, or adopted such approach as his own. That conspiracy, strategy or plan was, as Mr Viscariello has alleged on a number of occasions, to ensure that he was worn down and would go away. As indicated, if that is not his case, I cannot see how any action or inaction attributable to the Board can be sheeted home to the Commissioner other than by operation of the transitional provisions in the Amendment Act (which for the reasons set out below do not have such consequence), or how evidence of what the Board did or did not do is relevant in an action seeking mandamus against the Commissioner. In this regard, I repeat, an order against the Board is futile; the Board is not continued by the Amendment Act in some different guise. It does not exist.

   On this expanded view of Mr Viscariello’s case, it becomes necessary to determine whether there is evidence of a failure on the part of the Board to discharge the statutory duty imposed by s 76(1a)(b) of the Legal Practitioners Act, and, if that has occurred, whether there is evidence that the Commissioner joined in such refusal or adopted that approach as his own upon taking up his office, and, consequently, has determined himself not to discharge the duty imposed by s 77B(2)(b) of the Amended Act.

   [19]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [43]–[44].

9. The position taken by Mr Viscariello depends entirely upon the proper interpretation of the transitional provisions contained in Schedule 2, Part 4 of the 2014 Amendments. Clause 13 thereof provides for the transfer of the function of receiving complaints and conducting investigations to the Commissioner as a separate legal entity, in the following terms:

   13—Transfer of functions from Board to Commissioner

   (1)If a complaint received by the Board in relation to the conduct of a legal practitioner or former legal practitioner has not been resolved before the relevant day, the Commissioner will, on and from that day, assume the conduct of the complaint as if it had been received by the Commissioner.

   (2)If a direction by the Attorney-General or the Society to the Board to make an investigation into the conduct of a legal practitioner or former legal practitioner has not been resolved before the relevant day, the Commissioner will, on and from that day, assume the conduct of the investigation as if the direction had been given to the Commissioner.

   (3)An investigation commenced by the Board into—

   (a)     the conduct of a legal practitioner or former legal practitioner; or

   (b)     a complaint of overcharging,

   is, if the investigation has not been completed before the relevant day, to be continued by the Commissioner as if the investigation had been commenced under section 77B or (in the case of a complaint of overcharging) 77N of the principal Act as inserted by this Act.

10. The primary judge correctly accepted that clause 13(1) “makes plain that the Commissioner will assume conduct of unresolved complaints received by the Board … as if such complaints had been received by the Commissioner”.[20]

    [20]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [48].

11. Counsel for Mr Viscariello relied principally on clause 16 of the transitional provisions, which is in the following terms:

    16—Contracts, etc

    (1) All assets, rights and liabilities of the Board are transferred to the Commissioner.

    (2) A liability of the Board transferred to the Commissioner under subclause (1) may be paid from the Fidelity Fund.

    (3) The transfer of assets, rights and liabilities under this clause operates by force of this clause and despite the provisions of any other law.

    (4) A reference to the Board in an instrument or agreement that gives rise to or evidences an asset, right or liability under subclause (1) will have effect as if it were a reference to the Commissioner

12. Based on this clause, it was submitted that by the use of the phrase “assets, rights and liabilities”, it was intended the Commissioner inherit not simply the powers to receive and investigate complaints previously received by the Board, but also at the same time become clothed by the previous conduct of such complaints, so that they become the conduct of the Commissioner. Hence the Commissioner “was liable for any acts and omissions of the Board up to 30 June 2014” by reason of the transitional provisions contained in the 2014 Amendments. More specifically, it was contended that the word “liabilities” in clause 16(1) of Schedule 2 was wide enough to encompass the past conduct of the Board, which was thereby transferred to the Commissioner.

13. The primary judge rejected this interpretation, as is clear from the above quoted passages extracted from his judgment. It was therefore submitted that his Honour erred in doing so, and erred in the failure to consider the legal effect of clause 16. The relative sparsity of reasoning to this conclusion is however largely attributable to the fact that no submission was directed to the effect of clause 16 of the transitional provisions by either party.

14. The precise meaning to be given to the word “liabilities” depends on the context in which it appears, the subject matter involved, and the evident policy of the legislation in which it is found.[21]

    [21]   Tickle Industries Pty Ltd v Hann (1974) 130 CLR 321, 330.

15. Reference was made during the course of the appeal to Yarra City Council v Metropolitan Fire and Emergency Services Board and Others[22] for the proposition that the word “liabilities” in the transitional provisions encompasses prospective and inchoate liabilities. In Yarra City Council, the Victorian Court of Appeal held that a statutory transfer of “liabilities” from one local Council to another following Council restructuring included liability for the acts done by the predecessor Council in breach of environmental laws giving rise to compensation claims by occupiers of polluted properties. Relying on the decision of the High Court in Crimmins v Stevedoring Industry Finance Committee,[23] it was argued in Yarra City Council that the words “all liabilities of the former Councils are liabilities of the Yarra City Council” contained in an Order in Council effecting the restructuring process included prospective and inchoate liabilities of the former Council. Applying Crimmins, the Court held that “the word ‘liability’ may include contingent, prospective, and inchoate liabilities”.[24] In ruling as it did, the Court reasoned:[25]

    … The contingent liability that Richmond had incurred, at the time of the transfer to Yarra, to comply with a clean up notice under s 62A of the Act in respect of pollution it had caused, was a liability which the Order in Council succeeded in transferring to Yarra. In effect, the breadth of cl 18(b), construed in the context of the whole of the Order of Council, and consistently with the context and purpose of the Order in Council, has had the consequence that, at law, Yarra has become ‘the person who caused or permitted the pollution to occur’ …. It is rather that the legal effect of the Order in Council is, relevantly, that for the purposes of s 62A(1)(b), Yarra occupies the role of Richmond; it is the person to whom the EPA has the authority to direct compliance with a clean up notice.

    [22] (2017) 223 LGERA 135; [2017] VSCA 194.

    [23] (1999) 200 CLR 1.

    [24]   Yarra City Council v Metropolitan Fire and Emergency Services Board and Others (2017) 223 LGERA 135 at [140]; [2017] VSCA 194.

    [25]   Yarra City Council v Metropolitan Fire and Emergency Services Board and Others (2017) 223 LGERA 135 at [164]. The reference to s 62A is to the Environment Protection Act 1970 (Vic).

16. The situation in Crimmins related to the transfer of liabilities from one statutory authority (the Australian Stevedoring Industry Authority) to another (the Stevedoring Industry Finance Committee). For present purposes, at issue was whether upon the true construction of the legislation under which the Committee took the place of the Authority and assumed all its existing liabilities and obligations, it became legally responsible for a breach of a duty of care to Mr Crimmins occurring before the Committee was established.

17. Section 14 of the Stevedoring Industry Acts (Termination) Act 1977 (Cth) provided:

    Transfer of rights and liabilities

    PART III-MISCELLANEOUS

    On the expiration of the transitional period

    (a) all rights and property that, immediately before the expiration of the transitional period, were vested in the Authority are, by force of this section, vested in the Committee; and

    (b) the Committee is, by force of this section, liable to perform all the duties and to discharge all the liabilities and obligations of the Authority that existed immediately before the expiration of that period.

18. McHugh J (with whom Gleeson CJ agreed) construed this provision in the following way:[26]

    The context of the words “liabilities and obligations” in s 14 (b) suggests that they should be given the widest possible reading. That context includes the substitution of the respondent for the Authority as the controlling waterfront authority, the vesting of the Authority’s rights and property in the respondent, and the imposing of a liability on the respondent to perform the Authority’s duties. It makes it inherently likely that the words “liabilities and obligations ... that existed immediately before” were intended to make the respondent liable for discharging the consequences of any existing act or omission which could ground a legal action against the Authority. It would be surprising if the legislature intended that the liabilities of the respondent on the handover date were to be any less than those of the Authority if it had continued in existence. It seems most unlikely that the legislature could have intended to deprive people of rights that they would have had if the role of the Authority had not been taken over by the respondent. A statutory provision should not be given a construction that leads to an unjust or capricious result in cases appearing to come within its terms unless “the statutory language is intractable.

    …

    The language of s 14 is not “intractable”. Given the evident object of s 14, I see no reason for giving the words “liabilities and obligations” a narrow meaning. The case would be different if the respondent was to be liable only for causes of action “that existed immediately before the expiration of that period.” But the legislature has chosen a more ambiguous term. That ambiguity should be resolved in a way that protects, rather than destroys, potential rights. It should therefore be given an interpretation which protects the rights which the plaintiff would have had against the Authority but for the legislative re-organisation of the industry.

    [26]   Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at [142], [147] (citations omitted, emphasis in original).

19. The position here is rather different than it was in Yarra City Council and Crimmins. Unlike those cases, this case is not concerned with preserving accrued or contingent personal legal rights, responsibilities, or remedies, but rather it is concerned with the discipline of legal practitioners. In Crimmins, Gaudron J considered the evident purpose of the legislation was to “ensure that persons who had a claim on the Authority in respect of unperformed duties and undischarged liabilities and obligations could … look to the Committee for their performance and discharge”.[27] Adopting this language to Yarra City Council, the evident purpose of the relevant legislation therein was to ensure that contingent liability to landholders suffering pollution incurred by the Richmond Council was transferred to the Yarra City Council. In contrast, no such evident purpose emerges here.

    [27]   Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at [14].

20. It was obviously intended by Parliament in the 2014 Amendments that a completely different structure was to replace the Board for the determination of disciplinary processes. Clearly enough, the structure of the transitional provisions in Schedule 2 Part 4 begins with clause 13 vesting the Commissioner with the powers and functions of receiving and investigating complaints presently before the Board. This does not however, go so far as to preserve obligations or rights that may have accrued whilst investigating complaints in the course of disciplinary proceedings.

21. Clause 16 of the 2014 Amendments has nothing to say about such obligations or rights. Rather, as the statutory heading suggests, clause 16 is limited and merely transitional so far as accrued rights and liabilities owing to or by the Board for civil contractual purposes. That is to say, read in the context of the entire transitional provisions, this clause exclusively relates to the transfer of existing contractual obligations of the Board as opposed to the rights of complainants or practitioners acquired in the complaints and disciplinary processes. Although such “assets, rights and liabilities” might include favourable or adverse cost orders made in previous disciplinary proceedings, clause 16 otherwise has nothing to do with the parties to disciplinary proceedings before the former Board.

22. When one considers the entire context of the transitional provisions, it becomes apparent that these deal exclusively with ex-disciplinary subjects. Were it intended for broader application, one would expect clearer language in clause 16, and the use of words such as “duties” and “obligations” and for instance, or alternatively, clearer language such as that seen in Crimmins, for example “the Commissioner is, by force of this section, liable to perform all the duties and to discharge all the liabilities and obligations of the Board that existed immediately before the expiration of …”. Such expressions were not employed in the transfer of functions from the Board to the Commissioner. This is in contrast to s 7(1) of the Legal Practitioners Act 1981 which provided such a mechanism in respect of the Law Society:

    The society formerly known as the “Law Society of South Australia Incorporated” continues in existence as a body corporate under the name The Law Society of South Australia.

1. Likewise, the repeal of the Legal Profession Act 2004 (NSW) contained detailed transitional provisions which included provision for the continuation of disciplinary complaints and investigations commenced thereunder.[28]

   [28]   See Taylor v Council of Law Society of New South Wales [2020] NSWCA 273 at [24].

2. Unlike the situation in Esber v The Commonwealth of Australia[29] referred to by Mr Viscariello’s counsel, the transitional provisions here are merely procedural, so they fall short of preserving any substantive accrued rights acquired during disciplinary proceedings under the pre-2014 regime. A good illustration of the point is found in s 4(d) of the original Legal Practitioners Act1981, by which “any proceedings commenced before the Statutory Committee … and not finally disposed of … may be continued and completed under the repealed Act as if this Act had not been enacted”. Here again this is the very type of language one would expect to be used if the interpretation proffered on behalf of Mr Viscariello was correct. Instead, when passing the 2014 Amendments, Parliament chose the above transitional structure as opposed to adopting clearer language preserving existing rights, as it had done in 1981.

   [29] (1991–1992) 174 CLR 430.

3. A further telling consideration leading to the same conclusion is that the 2014 Amendments were passed for the express purpose of streamlining, expediting, harmonising and simplifying disciplinary processes against legal practitioners. The whole purpose of replacing a Board with a single Commissioner formed the core feature of the scheme. As held in Legal Profession Conduct Commissioner v Richardson:[30]

   The wording, context and evident purpose of para 14(1)(c) all indicate that the legislature’s intention was that the amended Act should govern both the commencement and prosecution of proceedings in the Tribunal regardless of when the conduct occurred.

   [30] (2016) 125 SASR 152 at [1], [24].

4. Hence Mr Viscariello retained no substantive rights that survived the transition; any such rights related to an entity that no longer existed. Furthermore, it is incorrect to view such rights as absolute, since mandamus is a discretionary remedy.

5. Contrary to his submissions, s 16(1) of the Acts Interpretation Act 1915 (SA) is of no avail to Mr Viscariello in these circumstances. It has no application to preserve “any duty, obligation, liability …” created or incurred or to affect any “legal proceedings or remedy in respect of any such … duty, obligation, liability …” because “the contrary intention appears” in the transitional provisions thus avoiding that very consequence.

6. This aspect of Mr Viscariello’s appeal must therefore fail. There is nothing unjust or capricious in the construction taken by the primary judge because it was clearly intended that a completely different streamlined complaints process would replace what was considered to be a cumbersome and outdated one.

   Actionable delay

7. Returning to the complaint of inordinate and unreasonable delay in investigating the complaints, the course of the disciplinary proceedings going back to early 2006 were chronicled in some detail by the primary judge, year by year. There is little need therefore, to re-examine or recapitulate much of what transpired in that period.[31] His Honour’s conclusions are a different matter. These can be condensed into the following precis:

   [31]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [78]–[306].

   ·2006 – there was no evidence that the Board was aware of the broader context of the complaints in the letters of 13 and 21 January 2006. The Board remained engaged in pursuing the complaints, and was entitled to seek further particulars in order to determine whether the complaint was one caught by the Legal Practitioners Act 1981. Three complaints were closed due to non-responsiveness to the Board’s letters, another was closed because there was nothing for the Board to investigate absent further information and a further two were closed because there was “no evidence of any further agitation of those complaints on Mr Viscariello’s part”;[32]

   [32]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [103]–[111].

   ·2007 – any delay was occasioned by the steps taken to retrieve files and other information relating to previous complaints, and by the reasonable requirement to provide fresh information before reopening closed complaints. There was no evidence that the Board actually or constructively refused to investigate the complaints;[33]

   ·2008 and 2009 – there was no evidence as to what occurred in 2008 and 2009, even though the complaints of 23 March 2007 remained outstanding. Thus “Mr Viscariello’s complaints were not advanced”; the last correspondence was the Director’s letter of 8 May 2007 inviting Mr Viscariello to provide further information;[34]

   ·2010 – there was no evidence of any steps taken in 2010; the position remained as it was at the close of 2007;[35]

   ·2011 – despite the fact that over five years passed since the first complaint “no committed step toward coming to grips with Mr Viscariello’s complaints” were taken since 11 August 2006. The Board determined not to investigate Mr Viscariello’s complaints pending the outcome of two proceedings he instituted in the Tribunal. Limited resources to be apportioned amongst all investigations justified suspending a particular investigation “where disciplinary action or litigation would deal with the subject matter of a complaint or in some way have a real impact upon an investigation into a complaint”. This consideration explained inaction on two complaints but it did not explain why the balance of Mr Viscariello’s complaints were not progressed. Even so, his Honour was unpersuaded that “at this point in time the Board had constructively determined not to investigate any of Mr Viscariello’s complaints”;

   ·2012 – inaction during 2012 was driven by the proceedings in the Tribunal and in the Supreme Court. The Board was criticised for awaiting the outcome of complaints “insofar as they would inquire into the conduct subject of the two complaints”. However there was no evidence to suggest that the Board informed itself of the ambit of the Court proceedings and “the likelihood of the proceedings touching upon or contributing to an investigation into the alleged unprofessional conduct on the part of the lawyers about whom Mr Viscariello had complained. This “wait and see response was inadequate”;[36]

   ·2013 – his Honour had “some sympathy with Mr Viscariello’s request in his email of 8 January 2013 for information as to what inquiry the Board proposed to initiate” and some sympathy with Mr Viscariello’s observation that “the proceedings in Viscariello v Macks could not justify inaction on the Board’s part since 2006”. However it was not unreasonable for the Board to suspend investigation of the two complaints pending the outcome of Full Court appeals “to the extent that those proceedings concerned complaints made”. Furthermore, the Board overlooked the complaint of 23 March 2007 which the Commissioner accepted constituted an adoption of those complaints. His Honour expressed “some disquiet about the Board’s conduct of Mr Viscariello’s complaints” and concern “with what appears to be poor administration”. He was also troubled by the fact that the Board had not determined “to what extent Viscariello v Macks did and did not deal with matters and particulars subject of Mr Viscariello’s complaints”; that may not have been an option due to resource implications. If that was the case, no evidence was adduced to support such conclusion. It was “plain … that during 2013 the Board was acting on Mr Viscariello’s complaints, to the extent it understood them. It and cannot be said to have refused either actually or constructively to investigate any and all complaints made by Mr Viscariello”.[37]

   ·2014 – by this time Mr Viscariello had lost all confidence in the Board, the Commissioner did “not appear to have been aware of all of the complaints he had made in the transition from Board to Commissioner on 1 July 2014, and so delegations made on 15 July 2014 “were not broad enough to deal with the position of conflict in which the Commissioner stood”. A delegation of 18 December 2014 “improved matters”, and the fact that the proceedings in the Tribunal were subject to appeal was an acceptable reason to delay progressing the two complaints, “at least to the extent of any overlap”; but there was no evidence of the Board or the Commissioner turning their minds to the question of overlap or otherwise. In respect of two further complaints Mr Viscariello was invited to complete the complaint forms enclosed in a letter from the Commissioner on 17 July 2014. Nothing in the documentary evidence suggested the Commissioner became aware of a particular approach taken by the Board or adopted that approach as his own. His Honour again expressed a concern that Mr Viscariello misconceived the operation of the Amended Act and the duty of the Commissioner by taking a literal approach to s 77B(2)(b); namely simply because he had complained of unsatisfactory professional conduct or professional misconduct, “that is enough to trigger the duty without the need on his part to articulate with sufficient precision who, how and when”.[38]

   ·2015 – no complaints were progressed because the delegations of the Commissioner were under challenge. The Commissioner could not be criticised since all acts undertaken pursuant to an unlawful delegation were liable to be impugned and evidence obtained liable to exclusion. By the same token, the “rhetoric from Mr Viscariello … [was] disingenuous in view of his attitude regarding the delegations”. Nevertheless, steps could have been taken to preserve evidence “the delegates would likely require”.[39]

   ·2016 – a delegate considered two longstanding complaints did not fall within the ambit of the delegations of 18 December 2014 and a decision was made to suspend investigation whilst it remained possible that charges laid in both might proceed in the Tribunal, a possibility put to an end on 19 February 2016. His Honour expressed “a sense of unease about the Board’s conduct of Mr Viscariello’s complaints and associated recordkeeping inherited by the Commissioner”.[40]

   ·2017 – there was nothing in the documentary evidence for 2017 that caused his Honour to think that the delegates Mr Bourne and Ms Eszenyi “were not free to act as they saw fit in the discharge of the powers delegated to them”. Mr Viscariello’s “attitude” toward the Board, the Commissioner, and the delegates “could only make progression of his complaints more difficult”.[41]

   [33]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [112]–[121].

   [34]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [122]–[123].

   [35]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [128].

   [36]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [157]–[159].

   [37]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [189]–[195].

   [38]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [210], [236]–[246].

   [39]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [259]–[260].

   [40]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [283]–[287].

   [41]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [304]–[306].

8. Of the oral evidence taken, his Honour found Mr May and his delegate, Ms Eszenyi, were credible and reliable. He accepted that once Mr May became aware of inadequacies with the delegations, he “acted to remedy the position within a reasonable timeframe”.[42] His Honour remained unprepared to criticise the Commissioner for reasonably accepting the decisions of his delegates not to proceed with investigations, which therefore did not “constitute a failure to comply with s 77B(2)(b)”. Further “the risk to the fruits of any investigation conducted pursuant to a challenged delegation justified downing tools”.[43] His Honour accepted Ms Eszenyi’s evidence to the same effect, considering it was “her decision ... made without first consulting the Commissioner”,[44] and that Mr May’s delegates were motivated by a desire “to clear the way for investigations to commence”.[45]

   [42]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [370].

   [43]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [374].

   [44]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [413].

   [45]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [375].

9. The evidence was that, with two exceptions, the balance of Mr Viscariello’s complaints remained undetermined and unresolved at the time of the trial.[46] The investigation of the two exceptions was delegated to Ms Eszenyi.[47] Unlike the other delegations, there is no question of invalidity or unlawfulness of delegations to her; none were the subject of attack in the underlying proceedings.

   [46]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [34].

   [47]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [419]

10. Upon assessing the documentary and oral evidence as a whole, his Honour was:[48]

    …satisfied that the ordinary person would consider the delay in progressing Mr Viscariello’s complaints since 1 July 2014 justified. In this regard Mr Viscariello is largely the author of his own demise … the ordinary person would also consider the public interest in the speedy identification and investigation of practitioners from who the community must be protected. Mr Viscariello’s complaints are not of a kind that demands immediate action to protect the public from the practitioners complained about.

    [48]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [422].

11. And later:[49]

    I am satisfied that the evidence establishes that the Board’s approach to Mr Viscariello’s complaints from some time in 2011 onwards was unsatisfactory but the Commissioner cannot be held responsible for this. Criticism could be levied at the Board and the Commissioner for not having in place systems that allowed for the speedy identification of all complaints made by Mr Viscariello, the recovery of all related files and the ascertainment of any and all actions taken to date, but as I noted above, it is no part of the function of this Court in the exercise of the supervisory jurisdiction to superintend the administration of executive government or inferior tribunals.

    Consequently his Honour was unsatisfied that the Commissioner had either actually or constructively refused to investigate the complaints made by Mr Viscariello.[50]

    [49]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [423].

    [50]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [425].

    Actionable delay – analysis

12. The above conclusions were largely drawn from a voluminous body of documentary material placed before the primary judge, supplemented by oral evidence. As to the former, this Court is entitled to reach its own conclusion as to the inferences that are properly drawn from the established facts.[51]

    [51]   Warren v Coombes (1979) 142 CLR 531, 551.

13. The primary judge assessed “the evidence in totality”,[52] making most of the critical findings during the course of his analysis, in effect calendar year by calendar year in the manner condensed earlier. His Honour found there was no evidence of steps taken in 2010 in respect of the complaints, the position remaining the same as it was at the close of 2007.[53] By the close of 2011 there was no evidence “that the Board had actually determined not to investigate Mr Viscariello’s complaints” and by the end of 2012, some inaction during that year was “no doubt driven by the proceedings in the Tribunal and in this Court”.[54] His Honour correctly reasoned:[55]

    Standing back, the Board’s wait and see response was inadequate. That is not to say that investigations into each complaint should have been launched, but I am left with the impression that the Board did not know precisely what it was dealing with.

    [52]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [422].

    [53]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [128].

    [54]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [148].

    [55]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [159].

14. When considered as a whole, the combined effect of these conclusions is greater than the sum of its component (year-by-year up to 1 July 2014) parts. To conclude that the Commissioner was not bound by decisions of the Board, that any action or inaction attributable to the Board could not be “sheeted home” to the Commissioner, or that “complaints from some time in 2011 onwards was unsatisfactory but the Commissioner cannot be held responsible for this”, is one thing. To suppose that the Commissioner was entitled to ignore the context and overlook delays or inadequacies of the past is quite another.

15. The subject complaints were made between 21 January 2006 and 23 March 2007. On 23 March 2007, Mr Viscariello indicated in writing a desire to reinstate the earlier complaints. In that correspondence, he expressed an intention to lodge fresh complaints against certain specified lawyers at Minter Ellison. No evidence of any formal decision or determination by the Board of closing, adjourning, delaying or holding in abeyance any investigation was adduced. The primary judge further considered holding matters in abeyance pending the outcome of the Tribunal proceedings was unnecessary in 2011.[56]

    [56]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [157].

16. Henceforth, the findings of the primary judge amount to concrete conclusions that apart from an initial period of unresponsiveness from Mr Viscariello, very little was done over about five years between 2006 and 2011, which was not explicable on account of limited resources, and that during 2012, the “wait and see response was inadequate”.[57] Inaction on account of other proceedings was not an explanation offered by the Board or one evidenced in its communications. During 2013, inaction on the Board’s part was unjustified and disquieting by “what appears to be poor administration”, whereas delays in 2014 and 2015 were justified on account of awaiting appeals and challenges to various delegations, “at least to the extent of any overlap”, even though other steps (which were not taken) could have been taken to “preserve evidence that the delegates would likely require”.

    [57]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [159].

17. As for 2016, his Honour expressed further “unease about the Board’s conduct of Mr Viscariello’s complaints and associated recordkeeping inherited by the Commissioner”,[58] whereas by 2017, the complaints were effectively in the hands of Ms Eszenyi for determination. It should be noted here that following a delegation of 15 September 2017, it took over six months before she obtained the files, due to “the product of a failure in communication” and “the product of a misunderstanding of the scope of these proceedings”.[59]

    [58]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [286].

    [59]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [403], [419].

18. Even so, as Lovell J pointed out in Viscariello v Legal Profession Conduct Commissioner,[60] the Legal Practitioners Act 1981 was prospectively amended with effect from 13 November 2016 to provide that any delegation by the Commissioner because of pecuniary or other personal interests conflicting with the Commissioner’s duties no longer constituted “taking action in relation to the matter the subject of the delegation” for the purposes of s 17(1)(c)(ii) of the Public Sector (Honesty and Accountability) Act 1995. The Full Court was informed in those proceedings of “possible action the Commissioner might make in the light of this amendment” and yet it was not “advised that such action has been taken”.[61] An affidavit filed on behalf of the Commissioner at that time suggested the Commissioner:[62]

    … was minded to revoke the Delegations … and to issue new Delegations so as to enable investigations that are the subject of these proceedings in the first place to be carried out as soon as possible, but he is reluctant to do so without the Court’s approval whilst the Court’s decision remains reserved.

    [60] (2017) 128 SASR 387 at [72]–[73].

    [61]   Viscariello v Legal Profession Conduct Commissioner (2017) 128 SASR 387 at [89].

    [62] Affidavit of Mr Bourne 18 April 2017 at [4].

1. The fact remains that it was open to the Commissioner to expedite the complaints by making fresh delegations and certainly by no later than 10 August 2017, once the Full Court delivered its judgment, irrespective of the challenges to the other delegations.

2. As against all the above considerations, progress was no doubt impeded to some extent by Mr Viscariello’s obdurate misconception “that simply because he has complained of unsatisfactory professional conduct or professional misconduct”, that was “enough to trigger the duty without the need on his part to articulate with sufficient precision who, how and when”, as well as his “attitude” toward the Board, the Commissioner and the delegates.[63] Further, Mr Viscariello’s “disingenuous” rhetoric which clearly “could only make progression of his complaints more difficult”,[64] a progression distracted in part in more recent years by the discredited notion that the Commissioner was party to a conspiracy with the Board to ensure that his complaints were never investigated.[65]

   [63]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [245].

   [64]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [306].

   [65]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [207], [281].

3. To a point, it may well be that Mr Viscariello was “largely the author of his own demise” in the period following 1 July 2014, a conclusion tempered somewhat both by the antecedent observation that as of 2014 “Mr Viscariello had lost all confidence in the Board” because the Commissioner did not appear to have been aware of all of the complaints he had made in the transition from Board to Commissioner, and by the “sympathy” his Honour held for him in respect of the email of 8 January 2013 and the Viscariello v Macks proceeding.[66]

   [66]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [236], [238], [241], [422].

4. All the same, there was sufficient delay in the course of events between 2006 and 2014, that is a period of around seven years, to make it incumbent on the Commissioner to attend to the complaints promptly. There was little evidence of substantive progress in the investigations and there were relatively long periods of unreasonable and unexplained inactivity. Matters were compounded by the misunderstanding that whilst inaction attributable to the Board cannot “be sheeted home to the Commissioner” the Commissioner was not entitled to ignore the history of delay preceding him. Whilst “the ordinary person” might well “consider the delay in progressing Mr Viscariello’s complaints since 1 July 2014 justified”, it is doubtful at best that would be the case for the period beforehand, given the degree of neglect and oversight identified by the primary judge. As the High Court recently reminded the courts in Clayton v Bant that delays of this order are “unacceptable” and that “(j)ustice delayed is justice denied”.[67]

   [67] [2020] HCA 44 at [44], [60].

5. It can be accepted for the present that the failure to deal with statutory investigations for an unacceptably protracted period of time could amount to the constructive failure to exercise a statutory obligation and which might result in a writ of mandamus declaring those proceedings void.[68] The matter of Evans concerned a conditional order for certiorari and mandamus made absolute on the ground that Magistrates declined jurisdiction by improperly adjourning. King CJ observed in The Queen v Kelly; Ex-parteHarvey:[69]

   If the matter is adjourned for extraneous purposes, or on unreasonable grounds, or for an unreasonable time, it may amount to a refusal or neglect to perform the function conferred by law and may result in mandamus.

   [68]   R v Evans (1890) 54 JP 471.

   [69] (1985) 38 SASR 93, 96.

6. The primary judge’s references to the conclusion that the Board “cannot be said to have refused either actually or constructively to investigate”[70] should be understood as due reference to these principles. In The Queen v Kelly; Ex-parteHarvey three judges variously considered that a remand of one year amounted to the “failure to perform a duty” required by law, “declining of jurisdiction” and acting “outside” jurisdiction.[71]

   [70]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [49], [121], [147], [148], [195], [286], [304], [425].

   [71]   The Queen v Kelly; Ex-parteHarvey (1985) 38 SASR 93, 96 (King CJ), 98 (Matheson J), 103 (Bollen J).

7. Speaking of what was on all accounts an “extraordinary delay” in delivering a decision by the Refugee Review Tribunal in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs, Gleeson CJ observed:[72]

   [u]ndue delay in decision-making, whether by courts or administrative bodies, is always to be deplored. However, that comfortable generalisation does little to advance the task of legal analysis when it becomes necessary to examine the consequences of delay. The circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare. … In some cases, mandamus may be an available remedy for dilatory behaviour, and failure to seek mandamus could constitute a discretionary reason to deny later relief.

   [72] (2005) 228 CLR 470 at [5].

8. Although no time limit for dealing with complaints is prescribed by the Legal Practitioners Act 1981, s 27(3) of the Acts Interpretation Act 1915 (SA) provides in that situation “the thing must be done with all convenient speed and as often as the prescribed occasion arises”.[73] In any event, the common law would serve to imply that action was required within a “reasonable time”.[74] As Dixon J observed in Koon Wing Lau, “what is a reasonable time will depend on all the facts …”[75]; put another way, delay is seen as unacceptable where it is unreasonable in all the circumstances.[76]

   [73]   Attorney-General (SA) v Tichy (1982) 30 SASR 85.

   [74]   Koon Wing Lau v Calwell (1949) 80 CLR 533, 573–574; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [102].

   [75]   Koon Wing Lau v Calwell (1949) 80 CLR 533, 574.

   [76]   Oliveira v The Attorney-General(Antigua and Barbuda) [2016] UKPC 24 at [37]; Thornton v Repartriation Commission (1981) 35 ALR 485, 489–490.

9. It follows that the duty to investigate the conduct of a legal practitioner under s 77B(1) of the Legal Practitioners Act 1981, carries with it the implication that any such investigation must be undertaken and completed within a reasonable time. As stated in Plaintiff S297/2013 v Minister for Immigration and Border Protection:[77]

   What amounts to a reasonable time is ultimately for determination by a court, on an application for mandamus against the Minister under s 75(v) of the Constitution or equivalent statutory jurisdiction, having regard to the circumstances of the particular case within the context of the decision-making framework established by the Act.

   [77] (2014) 255 CLR 179 at [37].

10. Further, as Fisher J observed in Thornton v Repatriation Commission, when determining whether there was unreasonable delay in making a statutory decision:[78]

    The question is whether there are circumstances which a reasonable man might consider render this delay justified and not capricious … a delay for a considered reason and not in consequence of neglect, oversight or perversity.

    [78] (1981) 35 ALR 485, 492. Quoted with approval in: O’Reilly, Re; Ex parte Australena Investments Pty Ltd; sub nom Commissioner of Taxation (Cth), Re; Ex parte Australena Investments Pty Ltd (ALR), Commissioner of Taxation (Cth), Re; Ex parte Australena Investments Pty Ltd (ATR) (1983) 58 ALJR 36; Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [59].

11. Gummow J noted in Al-Kateb v Godwin the qualification “reasonably” introduces an assessment or judgment of a period which is appropriate or suitable to the purpose of the legislative scheme.[79] The legitimate causes of delay may be influenced by the complexity of issues entrusted to the decision-maker, inadequate funding and staffing, and legislatively required time-consuming procedures.[80] As a question of principle in the discourse of administrative law, a failure to make a due inquiry and determination may amount to a constructive failure to exercise jurisdiction and may therefore amount to jurisdictional error or a denial of natural justice.[81]

    [79] (2004) 219 CLR 562 at [121].

    [80]   Blencoe v British Columbia (Human Rights Commission) [2000] 2 SCR 307, 392–393.

    [81]   Wei v The Minister for Immigration and Border Protection (2015) 257 CLR 22 at [23]; BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 at [25]–[29]; Unitec Institute of Technology v Attorney-General [2006] 1 NZLR 65 at [125]–[126].

12. In light of the conclusions reached by the primary judge referred to earlier, it may well be the case that the accumulative degrees of delay before 1 July 2014 might have formed a proper basis to declare that the Board failed to discharge the statutory duty to investigate the subject complaints within a reasonable time pursuant to the former s 76 of the Legal Practitioners Act 1981. Whilst the underlying proceedings were issued relatively late in the scheme of things before the 2014 Amendments on 19 December 2013 (bearing in mind that the complaints go back to between 21 January 2006 and 23 March 2007), had they fallen for determination before 1 July 2014, things may therefore have stood differently.

13. However, once it is accepted that no substantive rights survived the transition from the Board to the Commissioner under the 2014 Amendments and that any such rights pertain to an entity that no longer exists, it must follow that the appeal must fail to the extent that it relies on the period of time before 1 July 2014. In so far as the appeal depends on the post 2014 Amendment period, no basis is demonstrated to interfere with the decision of the primary judge and in any event disclose an insufficient platform for making any of the declaratory orders sought.

    Delegations

14. As noted already, Mr May purported to delegate his investigative functions to a number of legal practitioners due to his direct conflict of interest. That course was perfectly proper in the circumstances as it was “conducive to the efficient discharge of administrative functions”.[82] Having immediately recognised the conflict, Mr May notified both Mr Viscariello and the Attorney-General. As he did not seek authorisation in writing from the Attorney-General before taking further action as required by s 17(1)(c)(ii) of the Public Sector (Honesty and Accountability) Act 1995 (SA), those delegations were unauthorised.[83] This decision of the Full Court determined only the question of the unlawfulness of the delegations, as opposed to invalidity. The primary judge rightly pointed out in the present action that “Mr Viscariello somewhat opportunistically, [only recently] sought declarations of invalidity for the first time”.[84] The general power to delegate pursuant to s 77 of the Legal Practitioners Act 1981 is not otherwise in question.

    [82]   Viscariello vLegal Profession Conduct Commissioner (2017) 128 SASR 387 at [10].

    [83]   Viscariello vLegal Profession Conduct Commissioner (2017) 128 SASR 387 at [5], [64], [251]–[252], on appeal from Viscariello v Legal Profession Conduct Commissioner [2015] SASC 132 (Parker J).

    [84]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [434]. See also at ibid at [473], [484]–[492].

15. The written submissions for Mr Viscariello contend that the primary judge erred in concluding that the delegations made in breach of s 17(1) of the Public Sector (Honesty and Accountability) Act 1995 were not invalid. In essence, the submission was to the effect that the mandatory statutory language contained in s 17(1)(c)(ii) of the Public Sector (Honesty and Accountability) Act 1995 amounts to a precondition to the exercise of the power of delegation expressly evincing Parliament’s intention that any action or further action undertaken in breach of s 17(1)(c) was invalid unless authorised in writing by the relevant Minister. Mr Viscariello’s counsel added very little about the issue during the course of her oral submissions, apart from a short submission in reply.

16. The test for determining validity is whether it was a purpose of the legislation that an act done in breach of a provision should be invalid.[85] The relevant components of s 17(1)(c)(ii) of the Public Sector (Honesty and Accountability) Act 1995 reads as follows:

    [85]   Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [93]. The cases cited in support of this proposition in footnote (74) of the joint judgment include Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454.

    17— Duty of senior officials with respect to conflict of interest

    (1)A senior official must —

    …

    (c)     if a pecuniary interest (whether or not required to be disclosed under paragraph (a) or (b)) or other personal interest of the senior official conflicts or may conflict with his or her duties —

    (i)disclose in writing to the relevant Minister the nature of the interest and the conflict or potential conflict; and

    (ii)not take action or further action in relation to the matter except as authorised in writing by the relevant Minister.

17. Section 17(6) therein provides:

    If a senior official fails to make a disclosure of interest or fails to comply with any other requirement of subsection (1) in respect of a proposed contract, the contract is liable to be avoided by the relevant Minister.

18. Section 18 thereof proceeds to make it a civil offence to contravene the section by imposing monetary penalties equivalent to the profit made as a result of contravention, and compensation equivalent to any loss or damage sustained.

19. The primary judge considered these provisions operated “much in the same way” as s 70(1)(a) of the Australian Broadcasting Corporation Act 1983 (Cth), in as much as both speak of the exercise of power, rather than the existence of power, and they speak to a “senior official” rather than the public at large.[86] It was held in Australian Broadcasting Corporation v Redmore Pty Ltd that a contract within s 70(1)(a) of the Australian Broadcasting Corporation Act 1983 (Cth), into which the Corporation entered without the Minister’s approval, was not beyond the Corporation’s powers and was not prohibited by s 70(1)(a) so as to be an illegal contract and thus void.[87] Section 70(1)(a) provided:

    (1) The Corporation shall not, without the approval of the Minister

    (a)     enter into a contract under which the Corporation is to pay or receive an amount exceeding $500,000 …

    [86]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [497]–[498].

    [87]   Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454 (Mason CJ, Deane and Gaudron JJ, Brennan and Dawson JJ dissenting).

20. The prevailing majority considered it significant in reaching this conclusion that the directive was to the Commission “and not to an innocent outsider having contractual dealings with it …”,[88] and that the words of s 70(1) did not:[89]

    … spell out the effect on third parties of a failure by the A.B.C. to observe its statutory duty to obtain the Minister’s prior approval or speak in terms which would be appropriate to refer to a purported or ineffective entry into a contract.

    [88]   Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454, 457.

    [89]   Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454, 457.

21. Following an examination of the general structure of the Australian Broadcasting Corporation Act 1983, the majority concluded:[90]

    It can therefore be seen that both the general structure of the Act and the context provided by the other provisions of Pt VI … support a construction of s. 70(1) which sees the sub-section as directory (to the A.B.C.) about the manner of exercise of powers conferred … as not concerned to confine the actual content of those powers or to invalidate or render unenforceable contracts with innocent outsiders made in the exercise of them.

    Their Honours added towards the end of the joint judgment:[91]

    That construction of s. 70(1) does not reduce the sub-section to the status of a pious admonition. The sub-section imposes a statutory duty upon the A.B.C. and its officers which the A.B.C. Board is required to enforce (the Act, s. 8). Failure to observe the directive of s. 70(1) could, depending upon the circumstances, constitute misconduct for the purposes of disciplinary proceedings under Pt V Div. 4 of the Act (see s. 64(10)(f)(i)) and would, at the least, call for a report by the Auditor-General to the responsible Minister whose approval to the relevant contract had not been obtained. On that construction of s. 70(1), the failure of the A.B.C. to obtain the prior approval of the Minister did not have the effect that the making of the contract was ultra vires the A.B.C. Nor did it have the effect that the contract was illegal or unenforceable.

    [90]   Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454, 459.

    [91]   Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454, 459–460.

22. In the instant case, the applicable transitional provisions do not speak in terms which appropriately refer to a purported or ineffective delegation. They are not concerned with confining the content of that power or to invalidate or render unenforceable delegations to innocent third parties, and the failure to observe their directives attract criminal liability and civil penalties.

23. The decision of the Full Court of the Federal Court in Kutlu v Director of Professional Service Review[92] is distinguishable. Sections 84(3) and 85(3) of the Health Insurance Act 1973 (Cth) provided that the Minister must consult with and be advised by the Australian Medical Association before appointing medical practitioners to the Professional Services Review Panel or as a Deputy Director of Professional Services Review. These requirements were held to be essential preliminaries or preconditions to the exercise of Ministerial power to so appoint, the failure to comply resulting in invalidity.

    [92] (2011) 197 FCR 177.

24. Clearly in that situation, Parliament did not authorise persons to exercise those offices until they were first appointed in accordance with ss 84(3) and 85(3). The due constitution of the Panel itself was seen as fundamental to the effective administration of the Health Insurance Act 1973 (Cth). The objectives thereof were to protect the integrity of the Commonwealth medical and pharmaceutical benefits programs, and in doing so to protect patients and the community from risks associated with inappropriate practices in the medical professions.[93]

    [93]   Kutlu v Director of Professional Service Review (2011) 197 FCR 177 at [7].

25. By contrast, s 17 of the Public Sector (Honesty and Accountability) Act 1995 is not aimed at delegations as such, but at honesty and accountability in decision making, so that failing to meet the procedural obligation to make disclosure does not invalidate such decisions. This construction is supported by the fact that such “further action” as is caught by s 17(1), intrinsically acknowledges there may be valid antecedent action taken prior to the requirement of disclosure arising and hence the question of invalidity does not beforehand come into question.

26. Here, s 17(1)(c)(ii) of the Public Sector (Honesty and Accountability) Act 1995 does not spell out the effect on third parties of a failure by the Commissioner to observe the statutory duty to forbear from taking action without the Minister’s prior written authorisation. The section is directed to the Commissioner and to the internal management of public sector agencies rather than to others. It does not speak in terms appropriate to purported or ineffective delegations and by no means operate as “a pious admonition” in contravention because of the consequences that then apply. Considered at these levels of comparison, the primary judge was correct to consider s 17(1)(c)(ii) operated “much in the same way” as s 70(1)(a) of the Australian Broadcasting Corporation Act 1983.

1. Another consideration leading to the conclusion that the impugned delegations were not invalid was the adoption by the primary judge[94] of Parker J’s reasoning in Viscariello v Legal Profession Conduct Commissioner.[95] In his judgment, Parker J drew the conclusion that the delegations were not invalid, essentially for the following reasons:

   ·the Ministerial capacity to avoid contracts strongly suggests the failure to comply with the disclosure obligations was not intended by the legislature to invalidate all such decisions;

   ·if such decisions were intended to be invalid, s 17(6) would be unnecessary;

   ·great inconvenience could result if every decision regardless of the particular circumstances was rendered invalid and inoperative by s 17(1) and the consequences for an innocent party could be very harsh;

   ·as with the Australian Broadcasting Corporation Act considered by the High Court in Redmore, s 17(1) is directed at the internal management of public sector agencies;

   ·decisions in breach of s 17(1) are amenable to judicial review at the discretion of the Court thereby avoiding harsh and unjust outcomes; and

   ·the availability of alternative remedies such as criminal prosecution and the potential liability to disciplinary action or removal from public office.

   [94]   Viscariello v Legal Profession Conduct Commissioner [2019] SASC 111 at [501]–[502].

   [95] [2015] SASC 132 at [81]–[88].

2. When all the above considerations are combined, they build a conclusive case supporting the construction that breaches of s 17(1) of the Public Sector (Honesty and Accountability) Act 1995 do not lead to invalidity. These considerations lead to the conclusion that breaches of s 17(1) of the Public Sector (Honesty and Accountability) Act 1995 amount to breaches of procedural conditions for the exercise of the statutory delegation power at issue here, rather than to breaches of an essential preliminary to the exercise of that power.[96]

   [96]   Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [92].

3. Insofar as there was an implicit challenge to a delegation to Mr Bourne, as Mr Bourne did not make any relevant determinations there is no purpose or efficacy in a declaration of invalidity. Any such declaration would not produce any foreseeable consequences for the parties.[97] These aspects of the appeal must therefore fail.

   Application for fresh evidence and judicial review as a discretionary remedy

   [97]   Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 581–582.

   Application for fresh evidence

4. The majority of the various complaints lodged by Mr Viscariello remained extant at the time the underlying proceedings were commenced on 19 December 2013. They remained that way during the course of the trial in March 2018, and as of the date on which the primary judge delivered his judgment on 1 July 2019. In the meantime, on 15 September 2017, the Commissioner delegated all extant complaints to Ms Eszenyi. These delegations remain unchallenged. When the Second Notice of Appeal was filed on 18 July 2019, Ms Eszenyi had completed some but not all determinations of those complaints. It emerges that she progressively made determinations up to 18 February 2020, by which time all complaints were finalised. That is to say, all these determinations post-dated the hearing before the primary judge.[98]

   [98]   Second affidavit of Mr Gregory May (Commissioner) filed 1 October 2020.

5. As this subsequent course of events was not available to the primary judge, the Commissioner now seeks to adduce it as “fresh evidence” in the appeal, pursuant to rule 215.1(2)(i) of the Uniform Civil Rules 2020 (SA). The Commissioner contends the evidence sought to be adduced demonstrates that the appeal is futile, fundamentally because the underlying complaints made by Mr Viscariello which were subject to the application for judicial review and now subject to this appeal, were finally determined.

6. Mr Viscariello opposed the application to adduce fresh evidence. As the determinations by Ms Eszyenyi came after the trial, Mr Viscariello’s counsel submitted in writing that they had no material effect on whether the primary judge committed error and were therefore “irrelevant”. It was further submitted in Mr Viscariello’s written reply that there was in any event, utility in making declarations of invalidity of the delegations even if the only remaining issue is costs. It is accepted for the present purpose that an extant issue as to costs could constitute a live controversial matter for that purpose.

7. Rule 215.1(2)(i) provides a discretionary power to the Court as follows:

   215.1—Interlocutory orders

   (1) The Court may, at a directions hearing or in chambers, make orders on its own initiative or on the application of any person in relation to an appellate proceeding.

   (2) For example, the Court may make orders—

   …

   (i)relating to evidence sought to be adduced at the hearing of the appellate      proceeding; …

8. Remedial Rules of Court of this kind are unconfined by common law principles. Instead they are designed:[99]

   … to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous … to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures.

   McHugh, Gummow and Callinan JJ proceeded to observe in CDJ v VAJ (No 1):[100]

   … The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.

   [99]   CDJ v VAJ (No 1) (1998) 197 CLR 172 at [109].

   [100] (1998) 197 CLR 172 at [111].

9. The material sought to be adduced by the Commissioner fulfils the well-established principles at common law for the reception of fresh evidence, in the sense that it was unavailable at the time of trial and it was likely to produce a different result if it was.[101] If anything, the admission of such material in civil cases is more strictly controlled than it is in criminal appeal jurisdictions.[102] In Australasian Meat Industry Employees Union; Ex parte Ferguson, Toohey J added:[103]

   … fresh evidence should be admitted only where it is so material that the interests of justice require it; … and perhaps that no prejudice would ensue to the other party by reason of the introduction of the evidence so late.

   [101] Ratten v The Queen (1974) 131 CLR 510, 517–518; Lawless v The Queen (1979) 142 CLR 659, 665, 674–675, 669;

   [102] See, eg Orr v Holmes (1948) 76 CLR 632, 640 (Dixon J); Greater Wollongong City Council v Cowan (1955) 93 CLR 435, 444 (Dixon CJ).

   [103] (1986) 67 ALR 491.

10. In Commonwealth Bank of Australia v Quade, the High Court explained the policy underscoring this position:[104]

    … the reconciliation of “the demands of justice” and the “policy” that there be an end to litigation at least prima facie (or “generally”) dictate that the successful party should be deprived of the verdict in his favour only if the unsuccessful party persuades the appellate court that there was no lack of reasonable diligence on his part and that it is reasonably clear that the fresh evidence would have produced an opposite verdict. Such a stringent rule in that ordinary class of case is supported by considerations of both justice and public interest. Considerations of justice support it in that it would be unfair to the successful party if he were to be deprived of a verdict obtained after a trial on the merits and be subjected to the expense, inconvenience and uncertainty of a further trial merely because some relevant evidence had, without fault on his part, been unavailable to the unsuccessful party at the time of the trial. Considerations of public interest support it in that it is desirable in the public interest that there be finality in litigation in other than the truly exceptional case. …

    [104] (1991) 178 CLR 134, 141–142 (footnote omitted).

11. The new material sought to be adduced by the Commissioner holds considerable relevance and it is plainly more than capable of having a material bearing on the due resolution of the appeal. It is therefore properly admitted.

    Judicial review as a discretionary remedy

12. Counsel for Mr Viscariello correctly submitted that as opposed to appellate proceedings, actions for prerogative relief or judicial review have a much narrower focus. Such proceedings are as a cardinal principle of administrative law, focussed on whether the primary decision maker acted according to law at the time of making the requisite decision, rather than going to the merits of that decision “as the cloak of an appeal in disguise”.[105]

    [105] R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw (1952) 1 KB 338, 357; R v District Court of Sydney; Ex parte White (1966) 116 CLR 644, 655; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.

13. Be that as it may, it is authoritatively settled that relief in the nature of judicial review, or indeed for prerogative relief, is routinely refused as a matter of discretion when to do so is futile or lacks utility. In Ainsworth v Criminal Justice Commission, the majority of the Court stated:[106]

    It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which ‘[i]t is neither possible nor desirable to fetter … by laying down rules as to the manner of its exercise.’ However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have ‘a real interest’ and relief will not be granted if the question ‘is purely hypothetical’, if relief is ‘claimed in relation to circumstances that [have] not occurred and might never happen’ or if ‘the Court’s declaration will produce no foreseeable consequences for the parties’.

    [106] (1992) 175 CLR 564, 581–582 (a passage quoted with approval by Callinan and Heydon JJ in Ruhani v Director of Police (2005) 222 CLR 489 at [295], footnotes omitted).

14. As the High Court noted in R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust Ltd):[107]

    The writ of mandamus is not a writ of right nor is it issued as of course. There are well recognized grounds upon which the court may, in its discretion, withhold the remedy.

    In Church of Scientology Inc v Woodward for instance, Mason J considered there was no utility in making declaration for relief “in respect of past acts long since completed under a statute which has since been repealed”.[108]

    [107] (1949) 78 CLR 389, 400.

    [108] (1982) 154 CLR 25, 62.

15. The scope of the remedy of mandamus was determined in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott:[109]

    A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed. If the person under the duty professes to perform it, but what he actually does amounts in law to no performance because he has misconceived his duty or, in the course of attempting to discharge it, has failed to comply with some requirement essential to its valid or effectual performance, he may be commanded by the writ to execute his function according to law de novo … In the case of a tribunal, whether of a judicial or an administrative nature, charged by law with the duty of ascertaining or determining facts upon which rights depend, if it has undertaken the inquiry and announced a conclusion, the prosecutor who seeks a writ of mandamus must show that the ostensible determination is not a real performance of the duty imposed by law upon the tribunal. It may be shown that the members of the tribunal have not applied themselves to the question which the law prescribes, or that in purporting to decide it they have in truth been actuated by extraneous considerations, or that in some other respect they have so proceeded that the determination is nugatory and void. But the prosecutor who undertakes to establish that a tribunal has so acted ought not to be permitted under colour of doing so to enter upon an examination of the correctness of the tribunal’s decision, or of the sufficiency of the evidence supporting it, or of the weight of the evidence against it, or of the regularity or irregularity of the manner in which the tribunal has proceeded. The correctness or incorrectness of the conclusion reached by the tribunal is entirely beside the question whether a writ of mandamus lies. It is also beside the question that the determination, although not void, is yet one which, because of some failure to proceed in the manner directed by law, or of some collateral defect or impropriety, is liable to be quashed by a court which, on appeal, certiorari, or other process, is competent to examine it — see, per Channel, J, R v Nicholson, (1899) 2 QB 455 at p 465.

    [109] (1933) 50 CLR 228, 242–243.

16. Here the complaints were duly dealt with and resolved to finality by the delegate. To borrow an expression coined by Logan J in Australian Institute of Professional Education Pty Ltd v Australian Skills Quality Authority, “events have moved on”.[110] The writs of mandamus and orders for judicial review serve only to compel the Commissioner to undertake the investigations again. There is no utility in that course here since such investigations were duly undertaken and completed by the delegate.

    [110] (2016) 156 ALD 224; [2016] FCA 814 at [44].

17. There is another discretionary consideration producing the same result. As seen, extant complaints were disposed of by the delegate. There is no dispute concerning the validity of the delegations to Ms Eszenyi. If the consequent determinations are tainted in some way, the avenue of judicial review remains open. It is equally authoritatively established that relief in the nature of judicial review, or indeed for prerogative relief, may be refused as a matter of discretion when a complete remedy lies elsewhere.[111] Some guidance for this purpose is to be found in the joint judgment in R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd:[112]

    For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.

    [111] Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190.

    [112] (1949) 78 CLR 389, 400.

18. The appeal must therefore fail because the application for judicial review is bound to fail on the twin discretionary grounds of futility.

    Maladministration

19. Given the above conclusions, no grounds for the issue of orders in the nature of mandamus are shown. It follows there is necessarily no basis for finding maladministration. This contention founds on the point that the failure to pay regard to the entire past conduct of the Board, as well as the Commissioner, amounted to maladministration within the meaning of s 5(4) of the Independent Commission Against Corruption Act 2012 (SA), and on the assertion that a failure to fulfil the statutory duty to properly investigate by the Board became the responsibility of the Commissioner. For the above reasons, there was no error by the primary judge in concluding otherwise.

    Procedural Fairness

20. This aspect of the appeal related to the contention that the primary judge failed to afford Mr Viscariello procedural fairness by dismissing the mandamus/judicial review action and allegation of maladministration on grounds not pleaded, not argued at trial and not subject to submissions by the parties. The complaint wholly relates to the point disposed of above encompassing the conclusion that any acts or omissions of the Board could not be “sheeted home” to the Commissioner and therefore the Commissioner could not be held responsible for any acts or omissions of the Board. For all the reasons advanced earlier, there is no foundation for the conclusion that there was in the result a denial of procedural fairness. The issue was fully ventilated before this Court and for the reasons advanced above, the point was destined to fail anyway.

    Costs

21. The primary judge made an order that Mr Viscariello pay 85 per cent of the costs of the Commissioner in the proceedings before him, in addition to other ancillary costs orders.[113]

    [113] Viscariello v Legal Profession Conduct Commissioner (No 2) [2019] SASC 165 at [19].

22. It was submitted that the discretion to award costs against Mr Viscariello miscarried because the primary judge took into account an irrelevant consideration that Mr Viscariello should have re-assessed his prospects following the abolition of the Board and the creation of the office of the Commissioner, particularly when that issue was not raised during the course of the trial on behalf of the Commissioner or by the primary judge of his own motion during the hearing. It was further submitted that this amounted to an unfair, unjust and irrelevant “veiled criticism of the Appellant” causing the costs discretion to miscarry.

23. Considered in context, it is apparent the primary judge did no more than observe that the basis of the attacks by Mr Viscariello did not change in response to the significant legislative changes wrought by the 2014 Amendments, as they should have. This aspect of his case fails in any event for the reasons detailed earlier. For the same reasons, the failure to raise the issue was of no consequence given that the order for costs fell well within discretionary limits. As Mr Viscariello is not successful on any ground of appeal, there is no occasion to review or vary the cost order.

    Miscellaneous

24. As noted earlier, the Appellant no longer pursues Grounds 26, 27, 28, 32, 33 and 34 of the Second Notice of Appeal.

    Orders

25. For all of the above reasons the orders proposed are as follows:

    1.The Commissioner be permitted to adduce the evidence contained in the second affidavit of the Commissioner filed 1 October 2020, pursuant to Rule 215.1(2)(i) of the Uniform Civil Rules.

    2.The appeal is otherwise dismissed.

    3.The parties be heard on the question of costs of the appeal.