Viscariello v Legal Profession Conduct Commissioner - [2017] SASCFC 98

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
VISCARIELLO v LEGAL PROFESSION CONDUCT COMMISSIONER
[2017] SASCFC 98
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Lovell and The Honourable Justice Hinton)
10 August 2017
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - GENERALLY
STATUTES - ACTS OF PARLIAMENT - STATUTORY POWERS AND DUTIES - EXERCISE - DELEGATION OF POWER CONFERRED BY ACT
PUBLIC SERVICE - DUTIES AND OFFENCES IN RELATION TO OFFICE - DUTIES
Appeal against the order of a Judge of this Court dismissing an interlocutory application, and appeal from the order of the same Judge dealing with certain of the grounds, but not all, contained in the second statement of claim filed in the substantive proceeding to which the interlocutory application relates.
The substantive proceeding is an application for judicial review. In that proceeding as initially commenced the relief sought included orders compelling the respondent, initially the Legal Practitioners Conduct Board (now the Legal Profession Conduct Commissioner), to investigate complaints made by the appellant about the conduct of certain legal practitioners, and to seek the written consent of the Attorney-General to lay charges against the same practitioners for unsatisfactory professional conduct or professional misconduct out of time. The Commissioner delegated his powers to investigate the complaints and to defend the substantive proceeding.
By his interlocutory application and paragraphs 3 and 4 of Part 2 of the second statement of claim the appellant, amongst other things, challenged the conduct of the defence to the substantive proceeding by the Board, its successor the Commissioner and then the Commissioner’s delegate. He also challenged the lawfulness of delegations made by the Commissioner for the purposes of the investigation of complaints against legal practitioners that the appellant had made. The basis for the challenges lay primarily in asserted failures to comply with the Public Sector (Honest and Accountability) Act 1995 (the Accountability Act).
Held: per Hinton J, Lovell J agreeing, refusing permission to appeal to the extent required and dismissing the appeal:
1. Section 17 of the Accountability Act applied to the Commissioner.
2. The delegations of 15 July 2014 were made without authorisation first being obtained from the Attorney-General as required by s 17 of the Accountability Act.
3. The terms of the delegations of 2 December 2014, 18 December 2014 and 27 January 2015 each made to Mr Bourne were outside the terms of the authorisations given by the Attorney-General.
4. The terms of the delegations of 2 December 2014 and 18 December 2014 each made to Ms Eszenyi were within the terms of the authorisations given by the Attorney-General.
5. Despite (2) and (3) above, it is inappropriate to make the declarations sought.
Per Kourakis CJ, refusing permission to appeal to the extent required and dismissing the appeal:
1. Section 17 of the Accountability Act applied to the Commissioner.
2. Whilst the delegations of 15 July 2014 were made without authorisation under the Accountability Act first being obtained, no declaration of unlawfulness should be made.
3. The delegations of 2 December 2014 and 18 December 2014 did not fall outside the scope of the relevant authorisations provided by the Attorney-General.
Legal Practitioners Act 1981 (SA) s 68, s 69, s 70, s 71, s 72, s 74, s 75, s 76, s 77, s 77B, s 82; Public Sector (Honesty and Accountability) Act 1995 (SA) s 2, s 3, s 8, s 9, s 10, s 12, s 15, s 17, s 30; Public Corporations Act 1993 (SA) s 6; Public Sector Act 2009 (SA) s 3; Supreme Court Act 1935 (SA) s 50; Supreme Court Civil Rules 2006 (SA) r 288; Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA) s 44, sch 2 cl 13; Criminal Law Consolidation Act 1935 (SA) s 238, s 251; Acts Interpretation Act 1915 (SA) s 30; Public Sector (Honesty and Accountability) Regulations 2010 (SA) reg 4; Administrative Arrangements Act 1994 (SA) s 5, referred to.
R v Australian Broadcasting Tribunal, Ex Parte Hardiman (1980) 144 CLR 13; Isbester v Knox City Council (2015) 255 CLR 135, distinguished.
Viscariello v Legal Profession Conduct Commissioner [2015] SASC 132; Viscariello v Legal Practitioners Disciplinary Tribunal [2016] SASCFC 10; Viscariello v Legal Profession Conduct Commissioner (No 2) [2016] SASC 22; Viscariello v Macks (2014) 103 ACSR 542, discussed.
Savings & Investment Bank Ltd v Gasco Investments (Netherlands) BV and Ors (No 2) [1988] Ch 422; Gilbert v Endean (1878) 9 Ch D 259; ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193; Hardel Pty Ltd v Burrell & Family Pty Ltd (2009) 103 SASR 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319; JN Taylor Holdings Ltd (in liq) v Bond (1993) 59 SASR 432; Alphapharm Pty Ltd v H Lundbeck & Sons (2014) 254 CLR 247; O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356; A v Hayden (No 2) (1984) 156 CLR 532; Wentworth v NSW Bar Association (1992) 176 CLR 239; NH v Director of Public Prosecutions (SA) (2016) 90 ALJR 978, considered.

VISCARIELLO v LEGAL PROFESSION CONDUCT COMMISSIONER
[2017] SASCFC 98
Full Court: Kourakis CJ, Lovell and Hinton JJ

KOURAKIS CJ: I have had the advantage of reading the judgment of Hinton J. I adopt the terminology appearing in his reasons.
I would grant permission to amend the substantive application sought in FDN 38. The purpose of the amendment is to provide a foundation in the substantive proceedings, which was wrongly assumed to exist before the Judge, for the orders sought by Mr Viscariello. That interlocutory application proceeded as if it were a final adjudication of the lawfulness of the conduct complained of. The declarations sought in that interlocutory application took the form of final orders. An interlocutory order would have taken the form of a negative injunction restraining Mr Bourne from taking any action to defend the substantive proceeding until further order. In the course of determining whether or not to grant interlocutory injunctions of that kind some, or all of, the questions the subject of the declarations sought may have been considered, but would not have been finally adjudicated. The amendment regularises the position by placing on the record the substantive questions determined with the tacit agreement of the parties in the hearing before Parker J. The appeal against the dismissal of Mr Viscariello’s application may therefore proceed as of right against the final orders made adjudicating on the controversy between Mr Viscariello and the defendants on the validity and lawfulness of their actions.
However, I would refuse permission to appeal from the Judge’s failure to make the referrals sought to other government authorities. No justiciable controversy was raised by the application that the Judge make the referrals, and no appeal lies from his refusal to do so.
Appeal grounds 1, 6 and 7 – The Notice of Contention
I agree for the reasons given by Hinton J that the Judge failed to determine whether or not to make the declarations that all the actions taken by the Commissioner in opposing the appellant’s action for judicial review after 1 July 2014, and in making the delegations, were unlawful on account of a failure to comply with s 17 of the Public Sector (Honesty and Accountability) Act 1995 (SA) (Accountability Act). Declarations in those terms were expressly sought in Mr Viscariello’s plea for relief in the interlocutory application. The Judge wrongly confined his consideration to the more practically significant question whether the Commissioner’s delegations were invalid. No doubt it was the consequence of invalidity that was most strongly pressed, but Mr Viscariello’s claim for relief, on its face, was for declarations that the conduct was unlawful.
I also agree that the Notice of Contention must be dismissed. Section 17 of the Accountability Act applied to the circumstances in which the Commissioner was placed. The Commissioner had a personal interest which conflicted with his duty to investigate the complaints made by Mr Viscariello for the obvious reason that the complaints were made against him, in his former capacity as a partner of the legal firm, Minter Ellison, his former colleagues at that law firm and a member of his current staff. The same conflict afflicted his position as a respondent to the substantive proceeding. The powers to delegate the investigation of Mr Viscariello’s complaint and defend the substantive proceedings are affected by the same conflict because the choice of delegate may influence the way in which the powers are exercised. Section 17 of the Accountability Act prohibited the Commissioner from delegating his powers to persons selected by him without first obtaining the prior authorisation of the Attorney-General.
Even though it is of no ultimate significance, I observe that it is not obvious to me that the principles governing the statutory construction of criminal provisions apply as strongly in the construction of s 17 of the Accountability Act, as they do generally, because of the purpose it serves in imposing a duty on public servants in a position of conflict to recuse themselves and thereby ensure high ethical standards in the public service. However, quite apart from that rule of construction, I would read down the ‘action’, which s 17(1)(c)(ii) of the Accountability Act prohibits a senior official from taking, to mean an action which affects those legal rights, interests, powers or privileges of another, which conflict with the interests of the senior official, or is a material step in a process which is likely to have that effect. I would so construe the word ‘action’ by reference to the manifest purpose of the section. That construction is consistent with the ss 9 and 12 of the Accountability Act which prohibit involvement of corporate agency and advisory board members in the decision-making process of their agency or board when there is a conflict. Attending to, directing, or supervising the performance of, clerical functions which do not touch on the conflicting interests is not prohibited.
A material step in the process cannot be closely defined. Much will depend first on the legal powers of the senior official and on the administrative processes involved. In the case of the Commissioner, for example, an investigation pursuant to s 77B of the Legal Practitioners Act 1981 (SA) is an action within the meaning of that section both because of its statutory basis and its close connection with the determinations and other powers of the Commissioner which may follow it.
I observe here the words ‘in relation to’ do not expand the meaning of the word ‘action’ but allow for an indirect connection between the ‘action’, however defined, and the ‘matter’. The construction of the word ‘action’ is an anterior issue.
I acknowledge the force of the reasoning of Hinton J in reaching his conclusion that the Commissioner’s actions in procuring delegates prepared to act in his place without seeking the Attorney-General’s approval for their appointment fell within the scope of the prohibition. However, I take a different view.
It is conducive to the efficient discharge of administrative functions for senior public officials to identify potential delegates who might discharge their functions which are affected by a conflict instead of leaving that to the Minister or his or her staff. Indeed, the very fact that the impugned action of sounding out possible delegates might be undertaken by any other person, whether a public servant or not, without any delegation of authority, is a strong indication that it is not action within the meaning of s 17 of the Accountability Act. I also acknowledge that, other than a case such as this in which the senior official mistakenly believes that authorisation is unnecessary, there is little practical different between my approach and that of Hinton J as far as the securing of potential delegates is concerned. However, there are likely to be many clerical, and other office management functions, which are not closely connected to an administrative act affecting the interest over which there is a conflict, and which are not undertaken for the purpose of obtaining authorisation, which fall within the word ‘action’ if its meaning is not narrowed. Even though a senior official must notify the relevant minister of the conflict as soon as it arises, I would not ascribe to Parliament an intention to require the senior official to obtain ministerial approval for the performance of routine management functions in relation to the subject matter of the conflict necessary to prepare for the expeditious implementation of any decision which the Minister may make.
I accept that in a case in which delegation is an available option to deal with the conflict, it may be preferable to offer the relevant Minister a panel of persons to allow the Minister to select the person to whom a delegation will be authorised. However, I am not persuaded that the acts of identifying a suitable person, or persons, who might take a delegation and ascertaining that he or she is prepared to accept it, falls within the action prohibited by s 17 of the Accountability Act. That action is neither an exercise of any administrative power by the Commissioner nor is it sufficiently proximate to the exercise of the power of delegation because no delegation can be made to that person unless and until the Attorney-General authorises it. The Minister, in exercising his or her responsibility under the Accountability Act is not constrained by a single nomination made by a senior official. The requirement of authorisation by the relevant Minister is calculated to ensure that Ministers are ultimately responsible to Parliament for the management of conflicts in the public service.
I agree, for the reasoning given by Hinton J, that the Commissioner’s letter of 14 July 2014 does not seek authorisation for the proposed delegation. However, on my construction of s 17 of the Accountability Act, it is not necessary to impliedly exclude from the word action that conduct which is undertaken for the purpose of obtaining ministerial approval, because conduct which is undertaken for that purpose is not relevantly an action. The Commissioner’s letter discloses a proposed action, but one which was necessarily doomed to be ineffective because a delegation by the Commissioner without authorisation is prohibited.
If the Commissioner had gone further and contracted for the services of the nominated delegates, expressly or impliedly warranting that he would delegate powers pursuant to s 77 of the Legal Practitioners Act,[1] he would have contravened s 17 of the Accountability Act and the contract would have been liable to be set aside. However, that is not alleged here.
[1] I acknowledge that the letter from the Commissioner to the Attorney-General of 14 July 2014 discussing the proposed delegations suggests that the delegates ‘have agreed to accept my delegations’. However, I read that as the Commissioner having approached the delegates and them so accepting on the condition that the Attorney-General’s approval would be required.
It follows that the Judge did not err by failing to find that the Commissioner acted unlawfully between July 1 and 15. Grounds 6 and 7 must be dismissed.
However, the Commissioner acted in breach of s 17 of the Accountability Act in making the delegations without authorisation for the reasons given by the Judge.[2] It is with respect to that conduct that the Judge should have considered whether or not to make a declaration of unlawfulness.
[2] Viscariello v Legal Profession Conduct Commissioner [2015] SASC 132 at [75] per Parker J.
Nonetheless, in the circumstances of this case no declaration of unlawfulness should have been made. The delegation of 15 July had been superseded by delegations which, for the reasons appearing below, were made in compliance with s 17 of the Accountability Act. Moreover, the delegation was purportedly made for proper reasons albeit without an appreciation that s 17 of the Accountability Act required that the very step taken to remove the conflict itself be authorised. A breach of s 17 of the Accountability Act is a criminal offence. A person can only be convicted of a criminal offence after a trial with all the procedural protections that entails. Speaking generally, a declaration which is, in effect, a declaration of guilt should not be made in civil proceedings in which the person holding the office is not a party when there is otherwise no utility in making it.
It follows that notwithstanding the Judge’s failure to appreciate that declarations of unlawfulness were sought, there was ultimately no error in the failure to make such declarations. Grounds 1, 6 and 7 must therefore be dismissed.
Grounds 8, 9, 10 and 11
It follows from my reasoning and conclusion on the 15 July 2014 delegation that the Commissioner took no action within the meaning of s 17 of the Accountability Act in relation to the 2 December 2014 and 18 December 2014 delegations prior to obtaining the Attorney-General’s authorisation. The acts of the Commissioner preceding his letters seeking the authorisations of 2 and 18 December 2014 are not actions within the meaning of s 17 of the Accountability Act. The purpose for which they are undertaken is therefore of no consequence. Seeking the authorisation of the Attorney-General for the subsequent delegations to Mr Bourne and Ms Eszenyi made on 2 December 2014 and 18 December 2014 is not such an action because it is not an exercise of an administrative power or conduct closely connected to such an exercise.
If, contrary to my holding, the Commissioner’s acts before, and in making, his requests for authorisation fall within the meaning of ‘action’ in s 17 of the Accountability Act, I agree, for the reasons given by Hinton J at [167]-[169], that requests for authorisation are impliedly excluded. Grounds 8 and 10 must therefore be dismissed.
I agree for the reasons given by Hinton J that the delegations to Ms Eszenyi of 2 December 2014 and 18 December 2014 fell within the scope of the Attorney-General’s authorisation and that he was the relevant Minister for the purposes of the Accountability Act. I also agree that the Commissioner is not a public corporation and that therefore the Attorney-General was not required to comply with s 6 of the Public Corporations Act 1993 (SA) in order for the authorisations to be legally effective.
I turn next to whether the delegations to Mr Bourne of 2 and 18 December 2014 fell outside of the scope of the Attorney-General’s respective authorisations. The Attorney-General authorised the Commissioner to proceed with the delegation ‘to Mr Bourne of your role as instructing solicitor’ in relation to the proceedings identified in the Commissioner’s letter of 25 November 2014. I proceed on the basis that the Attorney-General’s elliptical reference to ‘court proceedings’ in his letter of 2 December 2014 encompassed all of the proceedings set out in the Commissioner’s letter. The identified proceedings were:
·The substantive proceedings being this action for judicial review (SC 1654 of 2013) seeking an order in the nature of mandamus against the Board.
·An action in this Court (SC 673 of 2014) brought by Mr Viscariello seeking an order in the nature of certiorari against the Legal Practitioners disciplinary Tribunal.
·An action in this Court (SC 806 of 2014) brought by Mr Viscariello against the Board.

The Commissioner’s letter of 25 November 2014 seeking authorisation for the delegation to Mr Bourne of 2 December 2014, and the Attorney-General’s letter giving it, both refer to the Commissioner’s ‘role as instructing solicitor in relation to the court proceedings’. However, the delegated role so identified is much more limited than the delegation which the Commissioner had earlier proposed. In his letter addressed to Mr Viscariello on 9 July 2014 the Commissioner informed Mr Viscariello that he intended ‘to delegate both my investigative and determinative functions that relate to, or that in any way arise out of, the SC Matter and the Complaints, to a person or persons independent of me and of this office’. In the Commissioner’s letter to the Attorney-General on 14 July 2014 he informed the Attorney that he was in the process of ‘delegating my power to conduct the defence of the Supreme Court proceedings and to make decisions relevant to those defences also to Mr Tim Bourne’.
There are no reasons apparent from the evidence for the more limited articulation of the delegation proposed in the Commissioner’s letter of 25 November 2014.
The question arises whether the Attorney-General’s authorisations of 2 and 18 December 2014 should be construed literally or in a way which fulfils their manifest purpose. If construed literally, the delegations had no work to do.   Indeed, it is a nonsense to speak of a delegation to Mr Bourne of a power to act as a solicitor. Mr Bourne was a legal practitioner and needed no delegation to act as the Commissioner’s solicitor.   Equally if the Commissioner wished to engage Mr Bourne as his solicitor in the Supreme Court proceedings with a view to Mr Bourne instructing counsel, there was no need to ‘delegate’ that role to Mr Bourne. The Commissioner himself or herself need not be a solicitor and may not therefore always be entitled to act as an instructing solicitor.[3] However, the Legal Practitioners Act 1981 (SA) provides that the Commissioner may be represented in proceedings before any court or tribunal by a legal practitioner employed or engaged by the Commissioner.[4] It follows that no delegation to Mr Bourne was necessary in order to engage him as an instructing solicitor.[5] Moreover, no problem as to conflict could possibly be resolved by the Commissioner’s engagement of an instructing solicitor who was still bound to act on the Commissioner’s instructions.   The Commissioner’s conflict arose from his position as party to the Supreme Court proceedings and not by reason of his capacity to represent himself in those proceedings.
[3]    Legal Practitioners Act 1981 (SA), s 71.
[4]    Legal Practitioners Act 1981 (SA), s 72(4).
[5]    In the defence first filed by the Board on 6 June 2014 to the substantive proceeding, the solicitor was described as Mr Ahern but his email address was one which suggests that he was an employee of the Legal Practitioners Conduct Board.
It is necessary to read the authorisation together with the Commissioner’s request and the earlier communication to which it refers. Reading those documents together resolves the absurdity and futility produced by a literal construction of the authorisation.
The Commissioner’s letter to Mr Viscariello of 9 July 2014, a copy of which was enclosed with his letter to the Attorney-General on 14 July 2014, referred to him having ‘a conflict in either being the instructing party in the SC [Supreme Court] matter, or in considering the conduct of the legal practitioners the subject of the complaint’. The letter of 14 July to the Attorney-General, as I earlier observed, referred to the Commissioner having a conflict and to his proposal to delegate his power to ‘conduct the defence of the Supreme Court proceedings’ to Mr Bourne. The letter also acknowledged that in exercising that delegation, the Commissioner expected that Mr Bourne would continue to brief Mr Harris QC whom the Board had already briefed before it was replaced by the Commissioner as a party to those proceedings.
Unfortunately, the Commissioner’s letter to the Attorney-General of 25 November 2014 conflated the role of the ‘instructing party’ in which the Commissioner was affected by the conflict he identified and the professional role of an instructing solicitor who is bound by the instructions of the party to the proceedings by whom he is engaged. Even though it is notoriously said that acting in one’s own cause is foolish, the Legal Practitioners Act expressly allows the Commission to be represented in legal proceedings by legal practitioners employed in the Commissioner’s Office. Therein may lie the reason for the conflation of roles in the Commissioner’s correspondence.
I observe in passing that the delegations with respect to the Commissioner’s investigative and disciplinary powers also delegated to Mr Bourne an investigative role and the role of acting as a solicitor in any consequential disciplinary proceedings which Ms Eszenyi may have determined to initiate. The delegations also conferred responsibility for the conduct of any such disciplinary proceedings on Ms Eszenyi, as the instructing party, but do not contemplate that she would appear as counsel to prosecute the disciplinary charges she determined should be laid. Accordingly, it can be seen that those delegations observe a distinction between Ms Eszenyi as the complainant in any disciplinary proceedings and the legal practitioners who may be engaged to prosecute them.
On the basis of the earlier communications between the Commissioner and the Attorney, and the context known to both of them, which was the need to put in place an arrangement to remove the Commissioner from his positon of conflict, as a party in the substantive proceedings, I would construe the authorisation of 2 and 18 December 2014 to be an authorisation to delegate to Mr Bourne the power to conduct the defence of the substantive proceeding as if he were the Commissioner.
I also hold that the authorisation of the Attorney-General given on 2 and 18 December 2014 continues to cover any delegations made or remade after it was given. The question is simply whether, with respect to an impugned delegation, it falls within the scope of an authorisation. The Attorney-General’s authorisations are not expressly limited by time and the period involved here does not test the limits of any implied term as to reasonableness. Nor is the authorisation limited by reference to a single exercise of the authorised action.
If contrary to my holding, the delegation to Mr Bourne of the powers to conduct the defence to the substantive proceedings fell outside the authorisation given by the Attorney-General, then there is strong reason to make a declaration to that effect. An expectation that the Commissioner will act on the basis of the Court’s reasons should not readily be accepted as an alternative to making a binding declaration of right about the right to prosecute proceedings in the court.
The second part of the delegations of 2 December and 18 December 2014 subordinate Mr Bourne’s role to Ms Eszenyi only to the extent that Ms Eszenyi was delegated the Commissioner’s determinative powers whereas Mr Bourne was not. The two delegations must be read together, and so read they carry with them an implication that Mr Bourne will act on Ms Eszenyi’s reasonable directions to assist her in that determinative function. In that context the delegation to Mr Bourne is for the purpose of providing information to Ms Eszenyi so that she may exercise her determinative function. It is not a delegation to Mr Bourne to investigate matters independently of the delegation of determinative powers to Ms Eszenyi. The delegations are therefore within the authorisation given by the Attorney-General.
On the other hand, I agree that the delegation of the power to Mr Bourne to act as the instructing solicitor on any disciplinary proceedings that Ms Eszenyi might take was not authorised by the Attorney-General. However, for the reasons given in [24] above, the delegation is mere surplusage because Ms Eszenyi was employed to engage such legal practitioners as she saw fit to conduct the disciplinary proceedings. Paragraphs 4, 5 and 6 of the delegation to Ms Eszenyi are, therefore, severable. There is a clear delineation between the investigative and determinative role of the Commissioner’s delegate and the prosecution of any proceedings that Ms Eszenyi might determine should be brought.
Accordingly I would dismiss the appeal with respect to grounds 9 and 10.
Grounds 15 and 16
A question arises whether, on my construction of the delegation to Mr Bourne, paragraphs two and three of the delegation to him unreasonably detract from the intended plenary grant of power expressed in paragraph one, which was necessary in order to remove conflict. Ultimately on a proper construction of paragraphs two and three they are an elaboration of the powers Mr Bourne was authorised to exercise pursuant to paragraph one without any direction that he exercise those powers in any particular way. The qualification that Mr Bourne act in accordance with the requirements of justice and fairness in the proper administration of the Legal Practitioners Act has the effect that Mr Bourne need only exercise the powers mentioned in subparagraphs (a) to (e) of paragraph 3 insofar as he determines, as if he were the Commissioner, that those steps should be taken. The reference to the Commissioner is a reference to the office, or put in another way, the Commissioner acting lawfully and properly. Grounds 15 and 16 must be dismissed.
Remaining Grounds
I would dismiss grounds 2 and 3. There is no error in the reasons of Parker J on the issues raised by those grounds. There is generally no conflict of interest when a statutory authority defends legal proceedings challenging the lawfulness and validity of its administrative act.
The observation in R v Australian Broadcasting Tribunal, Ex Parte Hardiman,[6] (the Hardiman principle) has no application to the Board with respect to judicial review of its decision whether or not to investigate a complaint against a legal practitioner. The decision to investigate does not affect a legal right or interest. There can be no reasonable apprehension that in defending the legality of a decision not to investigate the Board will be biased in reconsidering whether or not to do so if so ordered by this Court. In any event those questions do not arise unless and until the matter is returned to the Board.
[6] (1980) 144 CLR 13.
The position of the members of the Board is simply irrelevant to the lawfulness of the Board’s defence of the proceedings. The Board is an independent legal entity. Section 8 of the Accountability Act does not invalidate the decisions of the Board in the event of any breach of that section by its members. In any event, for the reasons given by Parker J below, and for the additional reasons given by Hinton J, the Board members had neither a personal nor a pecuniary interest in the Board defending the legality of its decision not to investigate Mr Viscariello’s complaints.
I would dismiss grounds four and five for the reasons given by Hinton J.
I would dismiss grounds 12 to 14 in relation to the alleged conflict affecting Mr Bourne and the applicability of s 30 of the Accountability Act for the reasons given by Hinton J. On the appeal Mr Viscariello contended that there was a conflict between the delegation to Mr Bourne to resist Mr Viscariello’s action seeking to quash the findings of unprofessional conduct made against him (SC 673 of 2014) with the delegation to investigate on Mr Viscariello’s complaint the legal practitioners who prosecuted those disciplinary proceedings against him. There is no conflict in the functions conferred on Mr Bourne. Mr Bourne was authorised to conduct both proceedings on his assessment of the merits. The commonality of some of the issues was good reason to delegate both proceedings to one person in order to ensure consistency. As it transpires, Action SC 673 of 2014 was dismissed by this Court after judgment was reserved in this matter. The Court found that there was no misconduct on the part of practitioners who had prosecuted Mr Viscariello for unprofessional conduct.[7]
[7] Viscariello v Legal Practitioners Disciplinary Tribunal [2016] SASCFC 10 at [111]-[112].
I would dismiss the appeal on ground 17 for the reasons given by Hinton J. The referral of matters by courts to law enforcement authorities for investigation is a purely ministerial function arising out of historical practice which is not subject to review by way of mandamus. I would dismiss the appeal on ground 18. The Attorney-General had no power to appoint a ‘Special Purpose Legal Profession Conduct Commissioner’.
Costs
It follows from my reasons that the only error made by the Judge in his consideration of the Commissioner’s application for costs is that he misapprehended the scope of Mr Viscariello’s claim for relief in that Mr Viscariello had sought declarations as to unlawfulness and not just invalidity. However, the only conduct which Mr Viscariello has shown to be unlawful is the delegation made on 15 July 2015 prior to the giving of any authorisation by the Attorney-General.
However, for the reasons explained by Hinton J, the interlocutory application for a declaration to that effect was not connected to the substantive action because the first delegation had subsequently been replaced. Only on this appeal has the scope of the substantive action been extended to encompass the legality of that delegation. At the time the application was heard by the Judge, the substantive action was properly conducted by the Commissioner’s delegates acting pursuant to the delegation of 27 January 2015. Moreover, for the reasons given in para [16] herein, no declaration should be made as to the legality of the 15 July delegation in exercise of the Court’s discretion.
It follows that there is no reason to interfere with the Judge’s exercise of the costs discretion.
LOVELL J:
I have had the advantage of reading the judgment of Hinton J. I generally agree with his reasons and the orders that he proposes. I add the following remarks.
Background
The history leading up to the issue of the judicial review proceedings and then the interlocutory proceedings is convoluted. In short, over many years, Mr Viscariello has been involved in a number of court actions. Mr Viscariello complained to the Legal Practitioners Conduct Board about the conduct of various practitioners arising from that litigation. He became unhappy with the way his complaints were dealt with by the Board.
On 19 December 2013, Mr Viscariello sought permission to proceed with an application for judicial review against the former Legal Practitioner’s Conduct Board. He sought orders, amongst other remedies, compelling the Board to inquire into the conduct of certain named legal practitioners. On 16 April 2014, permission was granted for him to proceed with the application.
On 1 July 2014, the Board was abolished as a result of amendments to the Legal Practitioners Act and its functions were assumed by a Commissioner, Mr May. Prior to his appointment Mr May worked for Minter Ellison. Mr Viscariello had made a complaint against Mr May and some members of Minter Ellison arising out of the earlier litigation. On 1 July 2014, the Commissioner Mr May, was substituted for the Board as a defendant in the action.
On 9 July 2014, the Commissioner wrote to Mr Viscariello noting that he, the Commissioner was now a defendant in the proceedings and acknowledging that as he was the defendant he would have a conflict of interest in being the instructing party in the judicial review proceedings. The Commissioner advised the Attorney-General that he was personally one of the practitioners Mr Viscariello had complained about. The Commissioner indicated his intention to delegate his investigative powers and determinative functions relating to the judicial review and the complaints by Mr Viscariello against the practitioners including himself to a person or persons, independent of him and of his office. The Commissioner in that letter did not nominate the person or persons to whom the delegation(s) would be made.
On 11 July 2014, Mr Viscariello responded by letter to the Commissioner. It is not necessary to set out the contents of that letter in any detail. However, Mr Viscariello noted that the terms of the delegation under the Legal Practitioners Act meant that the Commissioner alone selected, in his absolute discretion, to whom he would delegate his powers; that the Commissioner alone in his absolute discretion was entitled to place conditions on the powers he chose to delegate; and the Commissioner retained all of his powers under the Legal Practitioners Act, notwithstanding that he had made a delegation of those same powers to a third person.
Mr Viscariello stated that the proposal suggested by the Commissioner to deal with the conflict of interest issue confronting the Commissioner was unacceptable to him. Mr Viscariello stated that to deal with the problem in the manner suggested by the Commissioner would severely “undermine public confidence in your office and the administration of justice in this State”. Mr Viscariello went on to suggest a method for avoiding the problem.
The Commissioner proceeded to delegate his powers and functions as he advised Mr Viscariello. Before he made a formal delegation he advised the Attorney-General of his intentions by letter of the 14 July 2014.
The Commissioner informed the Attorney-General of the Supreme Court proceedings instituted by Mr Viscariello and the complaints made against named practitioners. The Commissioner informed the Attorney-General that as he had a conflict of interest in his capacity as the Commissioner he intended to delegate both his investigative and determinative functions. He advised the Attorney-General that he intended to delegate the determinative functions to The Honourable Mr Anderson QC. Further, that he intended to delegate his investigative functions, and his power to conduct proceedings and make decisions relevant to those proceedings, to Mr Timothy Bourne. The letter did not seek authorisation pursuant to s 17(1)(c) of the Public Sector (Honesty and Accountability) Act 1995.
On 15 July 2014 the Commissioner purported to delegate his powers and functions to Mr Anderson QC and to Mr Bourne as discussed. Mr Anderson QC later relinquished his delegation because of a potential conflict.
Mr Bourne subsequently corresponded with Mr Viscariello by email. Mr Viscariello continued to protest that his complaints were not being investigated. Mr Bourne advised Mr Viscariello that there were delays given his challenge to the validity of the delegations and he later noted that steps were being taken for a new delegation to be made.
On 13 August 2014, Mr Viscariello filed an interlocutory application seeking a series of orders and what he described as “a referral to the Attorney-General”. Amongst the orders sought were:
·a declaration that all actions taken by the Board in opposing his application for permission to proceed with his action for judicial review and in defending the action up to 30 June 2014 are unlawful;
·a declaration that all actions taken by the Commissioner in opposing the action for judicial review after 1 July 2014 are unlawful;
·a direction that delegations made by the Commissioner under s. 77 of the Legal Practitioners Act to the Hon Timothy Anderson QC and to Mr Timothy Bourne are unlawful.
On 25 November 2014 the Commissioner sent a letter to the Attorney-General seeking his approval for the making of fresh delegations. The Commissioner noted that Mr Viscariello had challenged the validity of the earlier delegation on the basis that he, the Commissioner, had not complied with s 17 of the Public Sector (Honesty and Accountability) Act. The Commissioner advised the Attorney-General that he considered the contention of Mr Viscariello regarding the operation of s 17 was misconceived. However, he advised the Attorney-General that, to avoid any possibility that the delegations may be invalid because of a failure to comply with s 17, he was now seeking the authorisation of the Attorney-General to make fresh delegations.

In this letter, the Commissioner advised the Attorney-General that he was seeking authorisation for “certain delegations that he would like to make”. He was seeking authorisation to delegate his determinative and investigative functions in relation to the complaints to Ms Eszenyi; his investigative functions in relation to the complaints to Mr Timothy Bourne; and his role as instructing solicitor in relation to the court proceedings also to Mr Bourne. The letter set out in brief the proposed delegations. A copy of the draft delegations was enclosed with the letter.
On 2 December 2014, the Attorney-General advised the Commissioner that he authorised him proceeding in accordance with the delegations described in the Commissioner’s letter in relation to the complaints and Court proceedings issued by Mr Viscariello. The response of the Attorney-General made no reference to the draft delegations that had been enclosed with the letter of the 25 November 2014. The Commissioner made the delegations on 2 December 2014.
Discussion
As discussed by Hinton J, it was a requirement that the Commissioner comply with s 17 of the Public Service (Honesty and Accountability) Act 1995 (the Accountability Act).
Relevantly, it states:
17—Duty of senior officials with respect to conflict of interest
(1)A senior official must—
(a)     on appointment as a senior official, disclose his or her pecuniary interests to the relevant Minister in writing in accordance with the regulations; and
(b)     on acquiring any further pecuniary interest of a kind specified in the regulations, disclose the pecuniary interest to the relevant Minister in writing in accordance with the regulations; and
(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.
Penalty: Division 4 fine.
(2) Subsection (1)(a) applies to a person who is a senior official on the commencement of this section as if the requirement to disclose interests on appointment as a senior official were a requirement to disclose the interests within one month after that commencement.
(3) A senior official must comply with any written directions given by the relevant Minister to resolve a conflict between the senior official's duties and a pecuniary or other personal interest.
Penalty: Division 4 fine.
(4)…
Section 17 is silent, understandably, on what authorisation and/or written directions should be given. Any authorisation and/or written directions would need to be specific to the case before the relevant Minister. Hence the requirements of s 17(1)(c)(i) that the senior official, when seeking authorisation, detail to the Minister, the nature of the conflict.
It can be seen that a purpose of s 17 is to inform the relevant Minister of the conflict and for that Minister to authorise any action or further action of the senior official. Sub s (3) requires the senior official to comply with any written directions given by the relevant Minister to resolve the conflict. However the prohibition in the section is not “to take action or further action” except as authorised. Authorisation of any action or further action effectively resolves the conflict.
Upon his appointment, the Commissioner had immediately recognised that he had a direct conflict of interest and notified both Mr Viscariello and the relevant Minister (the Attorney-General) of the problem. However he did not seek, pursuant to s 17 (1)(c)(ii), authorisation in writing from the Attorney-General before taking action or further action in relation to the matter. His purported delegations of 15 July 2014 were not authorised as required. I agree with Hinton J that the acts leading up to the 15 July delegations come within the prohibition.
Turning to the delegations made on 2 December 2014, authorisation for the delegations, pursuant to s 17 of the Accountability Act, was sought in the Commissioner’s letter to the Attorney-General of 25 November 2014. The Commissioner proposed that the delegations be made to Ms Esenyi and Mr Bourne. Mr Viscariello argued that the act of obtaining the consent of Ms Eszenyi and Mr Bourne to accept the delegations was to take action or further action in the matter. It can be accepted that these steps of obtaining their consent to accept the delegations must have been taken before the letter of 25 November 2014.
I agree with the reasoning of Hinton J regarding the meaning of “to take action or further action” in the context of a senior official seeking authorisation.
It was not unlawful for the Commissioner to have put forward the names of Ms Eszenyi and Mr Bourne to the Attorney-General. It is correct to observe that the Commissioner was suggesting to the Attorney-General who he would “like” to be involved in investigating and determine the complaint against the practitioners and this included the complaint against him personally. However the final decision was that of the Attorney-General.
It would have been preferable for the Commissioner, in the circumstances where he was being personally investigated, to have not made any recommendations to the Attorney-General as to whom the delegations should be made. This is the problem identified by Mr Viscariello in his letter of 11 July 2014 to the Commissioner referred to earlier.
I do not intend to suggest that the Commissioner, in taking the course he did, acted in anything other than good faith. The same must be said for the persons to whom the delegations were made.
I accept that the Attorney-General did not have to agree with the recommendations of the Commissioner. However in my view the preferable course of action would have been for the Commissioner to seek authorisation to delegate his powers and functions and to have requested the Attorney-General to nominate the persons to whom the delegations should be made.
I acknowledge the force of the remarks of Kourakis CJ on this topic. However, not all “personal or pecuniary interests” of a senior official leading to a conflict, direct or indirect, involve a complaint requiring an investigation of the senior official personally, particularly one against a senior official who has the statutory power to delegate his investigative and determinative functions. A factual situation such as this will be relatively uncommon. It would not be an onerous task for the Attorney-General to direct the Commissioner as to whom he should delegate his powers and functions unaided by suggestions from the Commissioner.
I note that the Legal Practitioners Act has recently been amended by the insertion of s 77(4) which states:
(4) For the purposes of section 17(1)(c)(ii) of the Public Sector (Honesty and Accountability) Act 1995 delegation by the Commissioner of a function or power under this section because of a pecuniary or other personal interest that conflicts or may conflict with the Commissioner's duties does not constitute taking action in relation to the matter the subject of the delegation.
The amendment is not retrospective. The Commissioner now does not have to seek authorisation from the Attorney-General before delegating his powers due to a pecuniary or other personal interest that conflicts or may conflict with his duty. It is still, of course, open to the Commissioner to seek such authorisation and to have the Attorney-General nominate the person or persons to whom such a delegation is to be made.
HINTON J.
Introduction
This matter commenced as an application for permission to appeal against the order of a Judge of this Court dismissing an interlocutory application. For the reasons given below, it is also to be treated as an appeal from the order of the same Judge dealing with certain of the grounds, but not all, contained in the second statement of claim filed in the substantive proceeding to which the interlocutory application relates.
The substantive proceeding is an application for judicial review. In that proceeding as initially commenced the relief sought included orders compelling the defendant, initially the Legal Practitioners Conduct Board (the Board), to investigate complaints made by the appellant about the conduct of certain legal practitioners, including solicitors employed by the firm, Minter Ellison Lawyers (Minter Ellison), and counsel, and to seek the written consent of the Attorney-General to lay charges against the same practitioners for unsatisfactory professional conduct or professional misconduct out of time.[8] After the substantive proceeding was instituted Parliament abolished the Board and replaced it with the Legal Profession Conduct Commissioner (the Commissioner). Pursuant to the transitional provisions of the relevant legislation the Commissioner became responsible for dealing with the appellant’s complaints and for defending the substantive proceeding. For reasons that will be explained, the Commissioner delegated his power to investigate the complaints and delegated his power to defend the substantive proceeding.
[8] Pursuant to s 82(2a) of the Legal Practitioners Act 1981 (SA).
The interlocutory application was instituted on 14 August 2014, after the delegations were first made. On the hearing of the interlocutory application the relief sought was:
(i)A declaration that all actions taken by the Board in opposing the appellant’s application for permission to proceed with his action for judicial review, and in defending that action up to 30 June 2014, were unlawful;
(ii)A declaration that all actions taken by the Commissioner in opposing the action for judicial review after 1 July 2014 were unlawful;
(iii)A declaration that the delegations made by the Commissioner pursuant to s 77 of Legal Practitioners Act 1981 (SA) (the Legal Practitioners Act) on 15 July 2014, 2 December 2014, 18 December 2014 and 27 January 2015 were unlawful;
(iv)A referral of the appellant’s complaints to the Attorney-General in order that he appoint an Acting Commissioner(s) under s 74 of the Legal Practitioners Act to carry out the investigation into the conduct of the legal practitioners subject of the substantive proceeding;
(v)A referral of the appellant’s complaints to the Attorney-General in order that he appoint an Acting Commissioner(s) under s 74 of the Legal Practitioners Act to carry out an investigation into the conduct of the Specified Lawyers within the meaning of the delegation dated 15 July 2014;
(vi)A referral of the appellant’s complaints to the Attorney-General in order that he appoint an Acting Commissioner(s) to meet the statutory obligations under the Legal Practitioners Act in relation to these proceedings.
The relief referred to in (iv)-(vi) above was said to constitute requests to the Court in the event that the appellant succeeded in obtaining the declarations subject of the relief sought in (i)-(iii).
As mentioned, a Judge of this Court dismissed the interlocutory application on 27 August 2015.[9] On 23 February 2016 the same Judge ordered that the appellant pay 75% of the costs incurred by the respondent of and incidental to the interlocutory application to be assessed on a party/party basis.[10] The appellant now seeks permission to appeal against both of those orders.
[9] Viscariello v Legal Profession Conduct Commissioner [2015] SASC 132.
[10] Viscariello v Legal Profession Conduct Commissioner (No 2) [2016] SASC 22.
The content of an interlocutory application must necessarily take its shape from the contours of the related substantive proceeding. Hence in Savings & Investment Bank Ltd v Gasco Investments (Netherlands) BV and Ors (No 2)[11] the English Court of Appeal held that an interlocutory application is one which is ancillary to the issues raised in the action, the true purpose of which is to enable the proper conduct of the trial and the final resolution of the issues between the parties.[12] To similar effect in Gilbert v Endean Cotton LJ said:[13]
... [those applications] are made for the purpose of keeping things in statu quo till the rights can be decided, or for the purpose of obtaining some direction of the Court as to how the cause is to be conducted, as to what is to be done in the progress of the cause for the purpose of enabling the Court ultimately to decide upon the rights of the parties.
[11] [1988] Ch 422.
[12] Savings & Investment Bank Ltd v Gasco Investments (Netherlands) BV and Ors (No 2) [1988] Ch 422 at 429 (Purchas LJ), at 444-445 (Nicholls LJ), at 448 (Russell LJ).
[13] (1878) 9 Ch D 259 at 269.
And, in ERS Engines Pty Ltd v Wilson, Young J, as he then was, held that interlocutory relief must relate to or arise out of the final relief sought in the initiating process,[14] whilst in Hardel Pty Ltd v Burrell & Family Pty Ltd Kourakis J, as he then was, said that interlocutory proceedings were to be regarded as procedural or adjectival.[15] It follows that interlocutory proceedings must be related to some other proceeding to which they are subsidiary and connected. The question to be asked is; how is the outcome of the application adjectival or ancillary to the determination of the substantive proceeding?
[14] (1994) 35 NSWLR 193 at 199-200.
[15] (2009) 103 SASR 408 at [34] (Nyland and David JJ agreeing).
The thrust of the interlocutory application in this case was that none of the Board, the Commissioner or the Commissioner’s delegates could, as a matter of law, instruct counsel in the defence of the substantive proceeding. For the substantive proceeding to go forward, a legal entity different to the Board, the Commissioner or the Commissioner’s delegates, must have the conduct of the matter pursuant to power lawfully vested. If this is right, on an interlocutory application, the question of the power to conduct the defence of the substantive proceeding arises at that point in time at which the application is heard. To extend the application to the lawfulness of revoked delegations is to invite the court to deal with matters that do not relate to or arise out of the substantive proceeding.
Accepting this, the appellant’s interlocutory application and this application for permission to appeal really turn on, and should be confined to, whether the delegation made on 27 January 2015 to Mr Bourne was unlawful and invalid, the 15 July 2014 and 2 December 2014 delegations having been revoked. This is because the 27 January 2015 delegation was the source of power pursuant to which Mr Bourne, as delegate of the Commissioner, purported to instruct counsel to conduct these proceedings.
Despite this the trial Judge considered and determined whether declarations should be made in relation to the delegations made on 15 July 2014, 2 December 2014, 18 December 2014, and 27 January 2015, and the appellant now seeks permission to appeal against his holdings.
In the course of the hearing of the application the disconnect between the interlocutory application and the substantive proceeding became apparent, in particular that the application before the Judge had travelled beyond the interlocutory. To confine the appeal to only those grounds that properly arise in the interlocutory context would not be conducive to the efficient and effective administration of justice. To regularise matters the appellant was given the opportunity to apply to amend his statement of claim. This Court indicated that an appropriately amended statement of claim would, subject to any objection from the respondent, allow the Court to deal with all issues ventilated before the Judge and on appeal.
On 10 August 2016 the appellant filed an interlocutory application[16] and supporting affidavit[17] to which was exhibited a marked up second statement of claim. The application was for permission to file and serve the second statement of claim.
[16] FDN 38.
[17] FDN 39.
Whereas the relief sought in the first statement of claim filed in the substantive proceeding sought the orders referred to above,[18] the relief sought in the second statement of claim was expanded to include:
(i)A declaration that each of the delegations made by the Commissioner was made in breach of s 17(1)(c)(i) and (ii) of the Public Sector (Honesty and Accountability) Act 1995 (SA) (the Accountability Act) and was unlawful; and
(ii)A declaration that in accepting and acting upon each of the delegations made by the Commissioner, Mr Bourne did so unlawfully and in breach of s 30 of the Accountability Act.
[18] At [76].
As mentioned, in the course of hearing the first interlocutory application to which reference has been made, the Judge heard full argument on the question of whether the declarations as sought in the second statement of claim should be made and determined the same, and, in turn, this Court heard full argument on whether the Judge had erred. The respondent did not mount any argument to the effect that the Judge had erred in considering those issues that went beyond the interlocutory, nor did it indicate that it was prejudiced in any way by proceeding as foreshadowed by this Court on the hearing of the application for permission to appeal.
The respondent was given the opportunity to object to the application of 10 August 2016 for permission to file and serve a second statement of claim. Deadlines set by the Court came and went. No opposition was received. In the circumstances I would grant the appellant permission to file and serve his second statement of claim. In what follows I treat the hearing before the single Judge as the trial of the relief sought in paragraphs 3 and 4 of Part 2 of the appellant’s second statement of claim in addition to the trial of the interlocutory application of 14 August 2014. With respect to the former, permission to appeal is not required.[19] With respect to the latter it is.[20] Accepting this, in my view, permission to appeal is required for grounds 2, 3, 4, 5, 6, 7, 15, 16, 17 and 18, and in relation to the appeal against costs (ground 19).
[19] Supreme Court Act 1935 (SA) s 50(5)(e).
[20] Supreme Court Civil Rules 2006 (SA) r 288(1)(a)(i).
Lastly, after the Court had reserved judgment, Mr Bourne filed an affidavit, affirmed 13 April 2017.[21] In the affidavit Mr Bourne informed the Court that the Legal Practitioners Act had been amended by the insertion of a new s 77(4) which came into operation on 13 November 2016 and addressed the application of s 17 of the Accountability Act to any delegation of power made by the Commissioner pursuant to s 77 of the Legal Practitioners Act. The affidavit referred to possible action the Commissioner might make in the light of this amendment that may impact upon the application and appeal before the Court. The Court has not been advised that such action has been taken. Consequently, I proceed on the basis that it has not.
[21] FDN 40.
Background
The substantive proceeding was instituted in December 2013. On 16 April 2014 the appellant was granted permission to proceed with that proceeding.[22] As mentioned the interlocutory application subject of this appeal was instituted in August 2014.
[22] Viscariello v Legal Practitioners Conduct Board [2014] SASC 53.
When the substantive proceeding was commenced the defendant was the Board. Not long after the appellant was granted permission to proceed, on 21 April 2014, certain parts of the Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA) (the Amendment Act) came into operation.[23] Amongst other things those parts abolished the Board and substituted the newly created office of the Legal Profession Conduct Commissioner.[24] The transitional provisions of the Amendment Act required the Commissioner to assume the conduct of any complaint received by the Board before the relevant day that had not been resolved as if it had been received by the Commissioner.[25] In the light of this, on 1 July 2014, the Chief Justice directed that the Commissioner be substituted for the Board as defendant in the substantive judicial review proceeding.
[23] South Australia, Government Gazette, No 28, 17 April 2014 at 1526.
[24] Amendment Act s 44.
[25] Amendment Act sch 2 cl 13(1).

In view of my conclusions, the costs order made by the Judge must be treated as made on an erroneous factual basis. That necessitates that permission to appeal such order be granted. It does not follow, however, that the appeal would necessarily be allowed. I would hear the parties further on the appeal against costs in the light of my conclusions.
Conclusion
For the above reasons, I would:
1.allow the application dated 10 August 2016 (FDN 38) for permission to file and serve the second statement of claim (as annexed to FDN 39);
2.on the basis that grounds 2, 3, 4, 5, 6, 7, 15, 16, 17 and 18 require permission to appeal, grant permission on grounds 6 and 7 but otherwise refuse the application for permission to appeal;
3.in relation to grounds 1, 6, 7, 8, 9, 10, 11, 12, 13 and 14, dismiss the appeal; and
4.grant permission to appeal on ground 19 (the application for permission to appeal against the costs order of 23 February 2016) and hear the parties further on that issue.
I would hear the parties further regarding the costs of the application for permission to appeal, and of the appeal.