Viscariello v Legal Profession Conduct Commissioner
[2019] SASC 111
•1 July 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
VISCARIELLO v LEGAL PROFESSION CONDUCT COMMISSIONER
[2019] SASC 111
Judgment of The Honourable Justice Hinton
1 July 2019
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT
Application for judicial review.
The plaintiff has complained about the professional conduct of a number of legal practitioners over the years. The complaints were initially made to the Legal Practitioners Conduct Board (the Board) which, by operation of the Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA), was abolished and succeeded by the office of the Legal Profession Conduct Commissioner (the Commissioner).
In these proceedings the plaintiff contended that the Board and subsequently the Commissioner had refused either actually or constructively to investigate his complaints contrary to the duty imposed on each by the Legal Practitioners Act 1981 (SA). In his application the plaintiff sought an order in the nature of mandamus compelling the Commissioner to investigate the complaints made and ancillary orders intended to ensure that the investigations be conducted by independent and impartial persons with reporting obligations to this Court.
The Commissioner opposed the application for an order in the nature of mandamus. He contended that neither he nor the Board had refused to investigate the plaintiff’s complaints. For his part the Commissioner, who could not investigate the complaints because he himself had been complained about and was thus conflicted, relied on the fact that he had made a series of delegations of his powers in relation to the plaintiff’s complaints and that by his delegates the Commissioner intended to investigate the complaints made.
In these proceedings the plaintiff also challenged some of the Commissioner’s delegations on the basis that they were invalid in that they were made in breach of the Public Sector (Honesty and Accountability) Act 1995 (SA). In his pleadings the plaintiff sought that the Court make declarations of invalidity in relation to the impugned delegations. The Commissioner opposed this relief on the basis that the question of invalidity had been determined finally by the Full Court in Viscariello v Legal Profession Conduct Commissioner (2017) 128 SASR 387.
Held, dismissing the application; i. the evidence does not support a conclusion that the Commissioner has either actually or constructively refused to discharge the duty imposed by s 77B(2)(b) of the Legal Practitioners Act 1981 (SA) in relation to any and all complaints made by Mr Viscariello about the professional conduct of legal practitioners named in his Statement of Claim. ii. An act done by a senior official within the meaning of the Public Sector (Honesty and Accountability) Act 1995 (SA) in breach of s 17(1)(c)(i) of that Act is not invalid.
Court Procedures Rules 2006 (ACT) rr 21, 501, 502; Independent Commissioner Against Corruption Act 2012 (SA); Legal Practitioners Act 1981 (SA), ss 56, 57, 68, 69, 72, 74, 75, 76, 77, 77AB, 77B, 77C, 77D, 82; Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA), s 44; Legal Practitioners (Miscellaneous) Amendment Act 2016 (SA); Public Sector (Honesty and Accountability) Act 1995 (SA) ss 2, 17, 30; Supreme Court Civil Rules 2006 (SA) rr 3, 55, 56, 57, 100, 113, 116, 211; Supreme Court Civil Supplementary Rules 2014 (SA) r 65, referred to.
Aon Risk Services Australia Ltd v Australian University (2009) 239 CLR 175; AON Risk Services Australia Ltd v Australian National University (2008) 227 FLR 388; Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454; Attorney-General (NSW) v Quin (1990) 170 CLR 1; Blair v Curran (1939) 62 CLR 464; Blencoe v British Columbia (Human Rights Commission) [2000] 2 RCS 307; Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59; George v Rockett (1990) 170 CLR 104; Hamilton-Smith v George (2006) 247 FCR 238; Henderson v Henderson (1843) 3 Hare 100; 67 ER 313; Hollington v F Hewthorn & Co Ltd [1943] KB 587; Hussien v Chong Fook Kam [1970] AC 942; Legal Profession Conduct Commissioner v Richardson (2016) 125 SASR 152; Macks v Viscariello (2017) 130 SASR 1; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470; O’Reilly; Ex parte Australena Investments Pty Ltd (1983) 50 ALR 577; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; Viscariello v Legal Practitioners Conduct Board [2014] SASC 53; Viscariello v Legal Profession Conduct Commissioner (2015) 296 LSJS 281; Viscariello v Legal Profession Conduct Commissioner (No 2) [2016] SASC 22; Viscariello v Legal Profession Conduct Commissioner (2017) 128 SASR 387; Viscariello v Legal Practitioners Disciplinary Tribunal [2016] SASCFC 107; Viscariello v Livesey [2014] SASCFC 40; Viscariello v Livesey [2013] SASC 198; Viscariello v Livesey (2013) 286 LSJS 525; Viscariello v Macks (2014) 103 ACSR 542, considered.
VISCARIELLO v LEGAL PROFESSION CONDUCT COMMISSIONER
[2019] SASC 111Application for Judicial Review
HINTON J:
Introduction
The proceedings and related decisional and legislative history
The broader litigation context in which these proceedings are to be understood
Evidential material received
Is the action out of time?
Mandamus — an actual or constructive refusal to investigate
A. Introduction
B. The applicable principles
C. The documentary evidence
2005
2006
(a) The Monksfield, Flaherty, Riach and Douglas complaints
(b) The 2006 Livesey complaint
(c) The Whittaker complaint
(d) The Ower Complaint
(e) Consideration
2007
Consideration
2008 and 2009
2010
Consideration
2011
Consideration
2012
Consideration
2013
Consideration
2014
Consideration
2015
Consideration
2016
Consideration
2017
Consideration
D. The Commissioner’s evidence
Consideration
E. Ms Eszenyi’s evidence
Consideration
F. Consideration
Should the Commissioner’s delegate report to this Court?
Should the Commissioner be compelled to seek an extension of time in which to lay a complaint in the Tribunal?
The Commissioner’s delegations and declarations of invalidity
Hardiman principle
Conclusion
Introduction
This is an application for judicial review. John Viscariello, the plaintiff, has complained about the professional conduct of a number of legal practitioners. His complaints are now dated. In these proceedings he contends, in effect, that the Legal Practitioners Conduct Board (the Board) and subsequently its successor, the Legal Profession Conduct Commissioner (the Commissioner), have refused to investigate his complaints contrary to the duty imposed on each by the Legal Practitioners Act 1981 (SA). In this application the primary relief that Mr Viscariello seeks is an order in the nature of mandamus compelling the Commissioner to investigate the complaints he has made. Mr Viscariello also seeks ancillary orders and declarations intended to ensure that the investigations be conducted by independent and impartial persons who should be subject to obligations to report on their progress and the final outcome to this Court.
I would dismiss the application. My reasons follow.
The proceedings and related decisional and legislative history
Later in these reasons I set out in some detail the evidence adduced by the parties. That evidence should be understood in the light of the pleading and decisional history of this matter and the relevant legislative history of the Legal Practitioners Act 1981 (SA). That history is as follows. On 19 December 2013 Mr Viscariello commenced this action.[1] On that same date Mr Viscariello also filed an interlocutory application seeking permission to proceed with the action as he was required to do by r 200 of the Supreme Court Civil Rules 2006 (SA) (SCCR).[2] On 16 April 2014 he was granted permission to proceed by Nicholson J.[3] On 14 August 2014 Mr Viscariello filed a second interlocutory application (the second interlocutory application) which was dismissed on 27 August 2015 by Parker J.[4] Mr Viscariello then appealed against Parker J’s dismissal of his second interlocutory application. On 10 August 2017 the Full Court dismissed that appeal.[5]
[1] See FDNs 1 and 2.
[2] FDN 3.
[3] Viscariello v Legal Practitioners Conduct Board [2014] SASC 53.
[4] Viscariello v Legal Profession Conduct Commissioner (2015) 296 LSJS 281.
[5] Viscariello v Legal Profession Conduct Commissioner (2017) 128 SASR 387.
Backtracking a little; on 16 April 2014 Nicholson J granted permission to proceed on the Statement of Claim filed 19 December 2013[6] which sought the following relief against the Board:
9.An Order pursuant to Rule 199(2) (c) of the Supreme Court Rules compelling the Defendant to perform its public duty to make an inquiry into the conduct of Mr Livesey QC and Ms Flaherty and the Other Legal Practitioners the subject matter of the Complaints to the Defendant pursuant to s76 (1a) (b) of the Act (Mandamus).
10.An Order compelling the Defendant to seek the written consent of the Attorney General pursuant to s 82 (2a) of the Act entitling the Defendant to lay charges against Mr Livesey QC and Ms Flaherty the Other Legal Practitioners notwithstanding that the conduct the subject matter of any proposed Charges may have occurred after more than five (5) years.
11.To the extent necessary, the Plaintiff seeks an order extending the period in which he is able to bring this claim pursuant to s 48 of the Limitation of Actions Act (SA) and the inherent jurisdiction of this Honourable Court.
12.Such further or other order as this Honourable Court sees fit; and
13.Costs.
[6] FDN 2.
That relief was sought on grounds that Nicholson J conveniently summarised as follows:[7]
[7] Viscariello v Legal Practitioners Conduct Board [2014] SASC 53 at [13].
The applicant’s statement of claim, pursuant to which he seeks judicial review of the Board’s alleged failure to perform its public duty in this respect, is in beguilingly straightforward terms. Its substantive content can be summarised as follows.
(i) The applicant was at all material times a complainant for the purposes of s76(1a)(b) of the Act.
(ii) Pursuant to s76(1a)(b) of the Act, the Board must make an investigation into the conduct of a legal practitioner where a complaint has been received in relation to the conduct of the legal practitioner.
(iii) From 13 January 2006, Ms Hamilton-Smith and the applicant in his own right and on behalf of Ms Hamilton-Smith made complaints or allegations to the Board in relation to and in connection with the conduct of:
(a) Mr Mark Livesey QC;
(b) Ms Tyniel Flaherty formerly of Minter Ellison Lawyers; and
(c) other legal practitioners referred to in the correspondence exhibited to the applicant’s affidavit filed in support of his application for judicial review.
(iv) At no time has the Board determined (in accordance with the power available to it under s76(1b) of the Act) not to commence and continue with any such investigation or investigations on the basis that a complaint received is frivolous or vexatious or on the basis that the Board is satisfied that the subject matter of a complaint has been resolved prior to commencement or completion of any investigation.
(v) The Board has failed or refused or declined to enquire into the conduct of either Mr Livesey, Ms Flaherty or any of the other legal practitioners identified in the correspondence exhibited to the applicant’s affidavit.
(vi) The applicant, in the circumstances, has no other legal remedy available to him to compel the Board to carry out its statutory obligation in relevant respects other than to seek an order for judicial review.
On 1 July 2014 amendments made to the Legal Practitioners Act 1981 (SA) by the Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA) (the Amendment Act) that abolished the Board and created the office of Legal Profession Conduct Commissioner came into operation.[8] Hereafter, where I refer to the Act or the Legal Practitioners Act I should be taken as referring to the Act as it was prior to 1 July 2014. Where I refer to the Amended Act I am to be understood as referring to the Act as it was after the 2013 amendments came into effect on 1 July 2014.
[8] Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA), s 44.
Under sch 2 cl 13(1) of the Amendment Act, as of 1 July 2014, the Commissioner assumed the conduct of all complaints received by the Board in relation to the conduct of a legal practitioner that had not been resolved. Consequently, also on 1 July 2014, the Chief Justice directed that the Commissioner be substituted for the Board as defendant in these proceedings.
Mr G May, previously the Chief Operating Partner at Minter Ellison Lawyers (Minter Ellison), was appointed to the office of Legal Profession Conduct Commissioner and has at all relevant times for the purposes of these proceedings occupied that office. As will be seen, Mr Viscariello complained about the conduct of Mr May to the Board prior to 1 July 2014 in addition to complaining about the conduct of other members of Minter Ellison and counsel briefed by Minter Ellison. As at 1 July 2014 those complaints remained unresolved. The position of conflict in which the Commissioner found himself led him to make a series of delegations of his powers in relation to the complaints Mr Viscariello had made. I deal with those delegations later in these reasons. The validity of some of the delegations is challenged by Mr Viscariello.
As mentioned, on 14 August 2014 Mr Viscariello filed a second interlocutory application.[9] That application was subsequently amended. In its final form it sought the following relief:[10]
(i)A declaration that all actions taken by the Board in opposing the [plaintiff’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 the Legal Practitioners Act 1981 (SA) on 15 July 2014, 2 December 2014, 18 December 2014 and 27 January 2015 were unlawful;
(iv)A referral of the [plaintiff’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 [plaintiff’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 [plaintiff’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.
[9] FDN 14.
[10] As summarised in Viscariello v Legal Profession Conduct Commissioner (2017) 128 SASR 387 at [76] (Hinton J).
As also mentioned, the interlocutory application was dismissed[11] and Mr Viscariello appealed to the Full Court. The Full Court granted Mr Viscariello permission to file and serve a Second Statement of Claim. The Full Court’s reasons explain why that permission was granted.[12]
[11] Viscariello v Legal Profession Conduct Commissioner (2015) 296 LSJS 281.
[12] Viscariello v Legal Profession Conduct Commissioner (2017) 128 SASR 387 at [1]-[3] (Kourakis CJ), [74]-[89] (Hinton J).
The relief sought in Pt 2 of Mr Viscariello’s Second Statement of Claim[13] was as follows:
[13] FDN 42.
1. An Order pursuant to Rule 199(2) (c) of the Supreme Court Civil Rules compelling the Defendant to perform its statutory obligation to make an inquiry into the conduct of each of the following legal practitioners:
aMr Livesey QC
bMs Flaherty
cthe Other Legal Practitioners including Mr May as referred to at paragraph 4.3 herein;
dMr R Whittington [sic] QC;
eMs G Walker;
fMs E Manos,
which is the subject matter of the Complaints made by the Plaintiff to the Defendant as set out herein pursuant to s76 (1a) (b) of the LPA.
2. If applicable and to the extent necessary, an Order compelling the Defendant to seek the written consent of the Attorney General pursuant to s82 (2a) of the LPA entitling the Defendant to lay charges against Mr Livesey QC, Ms Flaherty, the Other Legal Practitioners including Mr May, Mr R Whittington [sic] QC, Ms G Walker and Ms E Manos notwithstanding that the conduct the subject matter of any proposed Charges may have occurred after more than five (5) years.
3. A declaration that each of the Delegations made by the Commissioner, Mr May as set out in paragraph 17 herein were made in breach of s17 (c)(i) and (ii) of the PSHA Act [Public Sector (Honesty and Accountability) Act 1995 (SA)] and unlawful.
4. A declaration that in accepting and acting upon each of the Delegations made to Mr T Bourne by the Commissioner, Mr May, namely the 15 July 2014 Delegation and/or 2 December 2014 Delegation, and/or the 18 December 2014 Delegation and/or the 27 January 2015 Delegation, Mr T Bourne did so unlawfully in breach of s30 of the PSHA Act.
5. To the extent necessary, the Plaintiff seeks an order extending the period in which he is able to bring this claim pursuant to s 48 of the Limitation of Actions Act (SA) and the inherent jurisdiction of this Honourable Court.
6. Such further or other order as this Honourable Court sees fit; and
7. Costs.
It should be noted that the Full Court decided the appeal from the decision of Parker J on the basis that Parker J had determined the interlocutory application of 14 August 2014 in addition to the question of whether the substantive relief sought in Part 2 paragraphs 3 and 4 of the Second Statement of Claim should be granted.
On 15 December 2017 Mr Viscariello filed a Third Statement of Claim.[14] The relief sought in Part 2 paragraphs 1, 2, 3, 4, 5, 6 and 7 of the Third Statement of Claim largely mirrored that in the same numbered paragraphs of Part 2 of the Second Statement of Claim. However, a new paragraph 1A sought orders requiring the Commissioner to provide rolling three-monthly reports and a final report regarding the investigations conducted pursuant to any order made in granting the relief sought in paragraph 1. Further, new paragraphs 3A and 3B sought declarations that the delegations referred to in paragraph 3 given to Mr T Bourne were invalid and that anything done in purported reliance on those delegations by Mr Bourne was invalid and of no legal force or effect.
[14] FDN 44.
On 22 December 2017 the Commissioner filed a Second Defence.[15] In response to the Third Statement of Claim the Second Defence pleaded that Mr Viscariello was not entitled to the relief sought in Part 2 paragraph 1 and that this Court did not have the power to grant the relief sought in paragraphs 1A and 2. The Second Defence also pleaded:
[15] FDN 45.
4.The defendant denies that the plaintiff is entitled to the relief sought in paragraphs 3, 3A, 3B and 4 of Part 2 of the Statement of Claim and says that the matters raised by these pleadings were finally determined by the decision of the Full Court of this Honourable Court handed down on 10 August 2017 against which there has been an appeal.
5.In answer to the whole of the plaintiff’s claim the defendant pleads that the plaintiff has failed to comply with R.200 (2) of the Supreme Court Rules 2006 in that the plaintiff has failed to commence his application for judicial review within six months of review arose [sic] and the defendant denies that the plaintiff is entitled to the relief sought in paragraph 5 of Part 2 of the Statement of Claim.
6.In answer to the whole of the plaintiff’s claim the defendant pleads that in the exercise of it’s discretion the could [sic] should decline to grant any remedy on the basis that:-
6.1 by Delegation dated 15 September 2017 the defendant delegated to Ms Dymphna (Deej) Eszenyi, barrister, his determinative and investigative functions with respect to the complaints which are the subject of the Third Statement of Claim.
6.2 The plaintiff has not challenged the validity of that Delegation.
6.3 Following the said Delegation, Ms Eszenyi commenced her investigation into the complaints.
6.4 Ms Eszenyi’s investigation into the complaints is continuing.
6.5 There is no utility to the plaintiff’s application as any remedy lawfully available to the plaintiff is no more beneficial than the arrangement the defendant has already put in place by way of his Delegation to Ms Eszenyi of 15 September 2017.
On 20 February 2018, with the consent of the Commissioner, Mr Viscariello filed a Fourth Statement of Claim. In Part 2 of the Fourth Statement of Claim he sought the following relief:
1.An Order pursuant to Rule 199(2) (c) of the Supreme Court Civil Rules or s29 of the Supreme Court Act 1935 (SA) compelling the Defendant to perform its statutory obligation to make an inquiry into the conduct of each of the following legal practitioners:
a Mr Livesey QC;
b Ms Flaherty;
c the Other Legal Practitioners including Mr May as referred to at paragraph 4.3 herein;
d Mr R. Whitington QC;
e Ms G.Walker;
f Ms E. Manos;
g Mr M. Sykes;
h Ms D. Mercurio;
i Mr A. Bannister;
j Mr B. Priestly;
k Mr G. May
l Mr T. Duggan
which is the subject matter of the Complaints made by the Plaintiff to the Defendant as set out herein pursuant to s 76 (1a) (b) of the LPA.
1A.An Order pursuant to s29 of the Supreme Court Act 1935 (SA) or the Court’s inherent Jurisdiction that the Defendant:
a.provide rolling three (3) monthly Interim Reports to the Plaintiff and to the Court which Interim Reports shall include but not be limited to the following matters:
ifull list and details of all matters/documents/evidence investigated, analysed and considered;
iifull list of evidence/documents not investigated, analysed or considered and the reasons why not;
iiifull list of all witnesses interviewed and date interviewed and copies of all notes or transcripts of those interviews;
ivfull list of all persons contacted and the date contacted and copies of all file notes or transcripts of those conversations;
vfull list of all documents reviewed, considered and investigated;
viprogress of its investigations into each of the complaints;
viifull list of all documents/information it has requested or subpoenaed and from whom and whether or not that information has been provided or the subpoena complied with;
viiicopies of all communications exchanged with the Defendant and the legal practitioners;
ixthe amount of time spent in its investigations for each legal practitioner during the reporting period;
xwhat action is proposed for the next three month reporting period;
xiany other matter determined by this Honourable Court from time to time.
b.prepare and provide to the Plaintiff and to the Court a Final Report into its investigation into each of the named legal practitioners the subject of complaint to the Defendant as herein referred. The Defendant’s Final Report shall include but not be limited to:
i. A summary of all of the matters contained in its rolling three monthly Interim Reports referred to above;
j. Its findings and conclusions in relation to each legal practitioner;
k. its recommendations in relation to each legal practitioner.
2.If applicable and to the extent necessary, an Order pursuant to Rule 199(2) (c) of the Supreme Court Civil Rules or s29 of the Supreme Court Act 1935 (SA) compelling the Defendant to seek the written consent of the Attorney General pursuant to s82 (2a) of the LPA entitling the Defendant to lay charges against Mr Livesey QC, Ms Flaherty, the Other Legal Practitioners including Mr G May, Mr R Whitington QC, Ms G Walker, Ms E Manos, Mr M. Sykes, Ms D. Mercurio, Mr A. Bannister, Mr B. Priestly, Mr G. May and Mr T Duggan notwithstanding that the conduct the subject matter of any proposed Charges may have occurred after more than five (5) years or otherwise outside any applicable statutory limitation period.
3.A declaration under s31 of the Supreme Court Act 1935 (SA) or the Court’s inherent jurisdiction that each of the Delegations made by the Commissioner, Mr May as set out in paragraph 17 herein were made in breach of s17 (c) (i) and (ii) of the PSHA Act and unlawful.
3A.A declaration under s31 of the Supreme Court Act 1935 (SA) or the Court’s inherent jurisdiction that each of the purported Delegations made by the Commissioner, Mr May to Mr T Bourne as set out in paragraph 17 herein were invalid and of no legal force or effect.
3B.A declaration under s31 of the Supreme Court Act 1935 (SA) or the Court’s inherent jurisdiction that any and all of the purported steps or action taken by Mr T Bourne acting under each of the purported Delegations made by the Commissioner, Mr May to Mr T Bourne as set out in paragraph 17 herein were invalid and of no legal force or effect and in particular that all steps or action taken by Mr T Bourne in appearing in legal proceedings as the purported delegate for the Commissioner and taking the steps or action set out in paragraphs 23.4 to 23.5 herein were invalid and of no legal force or effect.
4. A declaration that in accepting and acting upon each of the Delegations made to Mr T Bourne by the Commissioner, Mr May, namely the 15 July 2014 Delegation, and/or the 2 December 2014 Delegation, and/or the 18 December 2014 Delegation and/or the 27 January 2015 Delegation, Mr T Bourne did so unlawfully in breach of s30 of the PSHA Act.
5. To the extent necessary, the Plaintiff seeks an order extending the period in which he is able to bring this claim pursuant to s 48 of the Limitations of Actions Act (SA) and the inherent jurisdiction of this Honourable Court.
6. Such further or other order as this Honourable Court sees fit, and
7. Costs.
Initially, the Commissioner did not consider that a further defence was required. The Second Defence put Mr Viscariello on notice that the Commissioner intended to submit that he was precluded from seeking the relief sought in Part 2 paragraphs 3, 3A, 3B and 4 of the Third and Fourth Statements of Claim on account of the issues raised and relief sought having been heard and determined by Parker J and/or on appeal from Parker J to the Full Court. During the course of the hearing before me Mr Viscariello sought further particulars of the basis upon which it was contended he was precluded from seeking the relief set out in paragraphs 3, 3A, 3B and 4 of his Fourth Statement of Claim. Those particulars were provided after Mr Viscariello had closed his case. Subsequently, the Commissioner applied to file a Third Defence to, in effect, amend Part 2 paragraph 4 of the Second Defence to insert the particulars which, it is said, provide the factual basis upon which Mr Viscariello is precluded from pursuing the relief sought in paragraphs 3, 3A, 3B and 4 of his Fourth Statement of Claim.[16]
[16] See interlocutory application (FDN 56) and the third affidavit of Timothy David Bourne, affirmed 7 March 2018 (FDN 57).
Mr Viscariello opposed the Commissioner’s application for permission to file a Third Defence. I deal with the application and objection later in these reasons when considering the relief sought under paragraphs 3A and 3B. As mentioned, the question of whether the relief sought in Part 2 paragraphs 3 and 4 of the Fourth Statement of Claim should be granted has been determined by Parker J and the Full Court. Whilst no formal orders were made the matters subject of Part 2 paragraphs 3 and 4 should be treated as if they were subject of an order under r 211 SCCR. In any event, I did not understand Mr Viscariello to contend that I should reopen the question of whether declarations of unlawfulness should be made. I understood him to be accepting of the majority opinion in the Full Court but now to contend that, the question of declarations of unlawfulness being determined, the Court should nonetheless consider making declarations of invalidity.
From this history it is clear that Mr Viscariello requires permission to proceed in Part 2 paragraphs 1A, 3A and 3B. In these reasons I deal with the question of permission, to the extent that it is required, in addition to whether the substantive relief sought should be granted on those paragraphs in relation to which permission is granted or has been granted and which were not dealt with by Parker J.
The broader litigation context in which these proceedings are to be understood
Mr Viscariello and his former partner Ms T Hamilton-Smith have been engaged in a considerable body of litigation, much of which provides the background to these proceedings and Mr Viscariello’s complaints. Mr Viscariello’s submissions assumed that the Court was acquainted with the various actions in which he was a party or had an interest. At times his submissions appeared to invoke findings made in other proceedings. He was advised of the rule in Hollington v F Hewthorn & Co Ltd.[17] I did not understand the Commissioner to object to the Court accessing the judgments in the various other proceedings in which Mr Viscariello has become involved, in particular the first instance judgment in Viscariello v Macks[18] and the Full Court’s judgment on appeal[19] from that decision on the basis that those proceedings formed part of the context in which Mr Viscariello complained and communicated with the Board and the Commissioner. However, there was no concession that findings made in other proceedings could be used in this matter as evidence of the truth of the fact found or asserted as opposed to the fact of what was found or asserted. Nor was it conceded that those with whom Mr Viscariello communicated or corresponded were necessarily aware of what I have described as the broader litigation context. I have proceeded on this basis.
[17] [1943] KB 587. See also, Australian Securities and Investment Commission v Macks (No 2) [2019] SASC 17.
[18] (2014) 103 ACSR 542.
[19] Macks v Viscariello (2017) 130 SASR 1.
For ease of reference I set out in summary form a brief history of the relevant proceedings as best I have been able to piece them together. Much of this history is also to be found summarised by Mr Viscariello in exhibit P11.
5 December 2001 Mr P Macks, a liquidator with the firm Prentice Parbery Barilla (PPB), was appointed administrator of Bernsteen Pty Ltd (Bernsteen). Mr Viscariello was a director and shareholder of Bernsteen.
21 December 2001 The creditors of Bernsteen voted to wind up the company. Mr Macks was appointed liquidator, Mr Macks’ solicitors were Minter Ellison.
Pausing here; the genesis to the present proceedings can be located largely in the liquidation of Bernsteen. It is enough to quote from the overview contained in the Full Court’s judgment in Macks v Viscariello:[20]
The respondent and cross-appellant, Mr Viscariello, was the sole director and effective controller of Bernsteen Pty Ltd and Newmore Pty Ltd. Bernsteen and Newmore (the Companies) sold manchester through retail outlets trading under the names “Bedroom Mazurka” and “Faulty Sheets and Towels”. Associated Retailers Ltd (ARL) was a secured creditor of the Companies. It supplied much of the Companies’ merchandise.
The Companies experienced financial difficulties in late 2001. Mr Viscariello sought to resolve those difficulties by entering into a heads of agreement for the sale of the Companies’ businesses to Mr Bart. The agreement was made on 27 November 2001. The agreement included terms that significantly affected ARL.
The appellant and cross-respondent, Mr Macks, is a liquidator. He was a principal of the firm PPB. Mr Viscariello consulted Mr Macks at the time that the heads of agreement was made. Mr Macks had previously acted as the administrator of the Companies under deeds of company arrangement (DOCAs) made in 1995.
On 5 December 2001, Mr Viscariello determined that the Companies were insolvent or likely to become insolvent in the near future and Mr Macks was appointed as their administrator. Mr Viscariello anticipated that the Companies would enter into DOCAs that gave effect to the heads of agreement following Mr Macks’ appointment. However, ARL advised that it would not consent to DOCAs on the terms proposed by Mr Viscariello and Mr Bart.
Mr Macks then prepared a revised heads of agreement to be made by Mr Viscariello, Mr Bart and ARL (the revised Bart proposal). However, ARL refused to agree to the revised terms. Accordingly, Mr Macks advised creditors that there was no proposal to rescue the Companies and they went into liquidation on 21 December 2001. Mr Macks was appointed as the liquidator.
Mr Viscariello was aggrieved by that outcome. Eventually, in December 2004 he gave notice of his intention to commence proceedings against Mr Macks. The foreshadowed claims made allegations about Mr Macks’ conduct as the administrator of the Companies.
Mr Viscariello served his first statement of claim in these proceedings in February 2006. He alleged that Mr Macks had misled creditors about the revised Bart proposal and had breached duties that he owed as the administrator of the Companies by advising that there was no alternative to liquidation. He also alleged that Mr Macks had sold the Companies’ assets at an undervalue. He claimed to have lost the chance to avoid losses suffered as a consequence of the Companies being wound up.
[footnotes omitted]
[20] (2017) 130 SASR 1 at [1]-[7].
I understand Mr R Mansueto, Ms T Flaherty and Ms N Riach to be the particular solicitors at Minter Ellison who acted for Mr Macks. They retained Mr M Livesey QC of counsel. Mr N McBride was the managing partner of Minter Ellison at the relevant time and Mr May the Chief Operating Partner.
6 August 2002 Bernsteen (Mr Macks) instituted proceedings against Ms Hamilton-Smith for non-payment of a debt of $28,000 plus interest and costs. In Macks v Viscariello this action was referred to as the “Bernsteen action”.[21] In the overview to its judgment the Full Court said the following about the Bernsteen action:[22]
[21] (2017) 130 SASR 1.
[22] Macks v Viscariello (2017) 130 SASR 1 at [8]-[9].
Mr Macks sold some of Bernsteen’s stock to Ms Hamilton-Smith. She was, at that time, Mr Viscariello’s partner. Ms Hamilton-Smith defaulted under the sale agreement and in August 2002, Bernsteen commenced proceedings in the Magistrates Court to recover the sum of $28,000, being the amount payable for the stock (the Bernsteen action).
Ms Hamilton-Smith responded by counterclaiming against Mr Macks and embarking on a campaign of interlocutory attrition. As this court observed on the hearing of one interlocutory appeal, “[Ms Hamilton-Smith], or those advising her, are of a litigious disposition arguing every point at every stage of the process”. The result was that the Bernsteen action became inordinately protracted; Bernsteen incurred substantial legal expenses that were grossly disproportionate to the debt claimed; and Mr Macks effectively lost control of the proceedings.
[footnote omitted]
The solicitors and counsel that acted or appeared for Bernsteen in this action included Mr Livesey, Ms Riach and Ms Flaherty.
12 November 2002 Ms H George instituted proceedings in the State Magistrates Court against Ms Hamilton-Smith claiming $4,250.00 plus costs.
25 August 2003 Ms George obtained judgment in the sum of $4,079.80 against Ms Hamilton-Smith. Minter Ellison subsequently proposed that Mr Macks indemnify Ms George for the cost of instituting proceedings against Ms Hamilton-Smith under the Bankruptcy Act 1966 (SA) “as a way of extracting himself from the morass that had enveloped the Bernsteen action”.[23]
[23] Macks v Viscariello (2017) 130 SASR 1 at [10].
January 2005 The trial of the Bernsteen action instituted by Mr Macks against Ms Hamilton-Smith on 6 August 2002 commenced. Mr Livesey appeared as counsel for Bernsteen/Mr Macks.
24 June 2005 Indemnified by Mr Macks for her legal costs, Ms George issued a bankruptcy notice against Ms Hamilton-Smith. In Macks v Viscariello those proceedings were referred to as the “George bankruptcy proceedings”.[24] Minter Ellison acted for Ms George in the George bankruptcy proceedings.
[24] (2017) 130 SASR 1.
21 July 2005 Ms Hamilton-Smith filed an application to set aside the bankruptcy notice. In a supporting affidavit Ms Hamilton-Smith asserted that she had reason to believe that Ms George’s legal costs and expenses were being paid by Mr Macks. She alleged that the bankruptcy notice was an abuse of process, vexatious and instituted for an ulterior purpose. Ms Hamilton-Smith also said the debt had been satisfied.
16 August 2005 Ms George filed an affidavit in the George bankruptcy proceedings denying that the debt owed to her had been satisfied. Ms Riach of Minter Ellison filed an affidavit which asserted that there was no basis to the allegation that the bankruptcy notice issued at the behest of Ms George was an abuse of process. In Viscariello v Macks it was contended that Ms Riach’s affidavit was misleading.
9 September 2005 The application to set aside the bankruptcy notice was heard in the Federal Magistrates Court. Mr M Douglas appeared as counsel for Ms George. It was asserted that Mr Douglas made submissions that the allegations of ulterior motive/improper purpose were “scandalous, opinion, hearsay and inadmissible”.
22 September 2005 Ms Hamilton-Smith’s application to set aside the bankruptcy notice issued 24 June 2005 was dismissed.
26 September 2005 Ms George presented a creditor’s petition against Ms Hamilton-Smith.
25 October 2005 Ms Hamilton-Smith issued proceedings in the State Magistrates Court against Ms George seeking, amongst other things, a declaration that the judgment debt of 25 August 2003 had been satisfied by way of an accord and satisfaction.
17 November 2005 Ms George filed an application in the State Magistrates Court seeking an order that the proceedings commenced 25 October 2005 be struck out as an abuse of process.
28 November 2005 Ms Hamilton-Smith filed an application in the Federal Magistrates Court seeking an order setting aside the 26 September 2005 creditor’s petition.
February 2006 Mr Viscariello commenced proceedings in this Court against Mr Macks. One of the issues at trial was the propriety of Mr Macks’ funding the George bankruptcy proceedings. Mr Livesey was retained to act for Mr Macks.
28 February 2006 The 26 September 2005 creditor’s petition was adjourned to 5 June 2006. It was contended that payment had been tendered more than once but refused by the creditor. Counsel for Ms Hamilton-Smith submitted that this, in combination with other factors, evidenced that the proceedings had been instituted for an improper purpose.
23 March 2006 The strike out application of 17 November 2005 was dismissed.
11 April 2006 A Federal Magistrate dismissed a review of the Registrar’s decision made 28 February 2006.
21 April 2006 The creditor’s petition was further adjourned, this time to await the outcome of the proceedings instituted in the State Magistrates Court. Mr Livesey appeared on the creditor’s petition instructed by Ms Riach and Ms Flaherty of Minter Ellison.
9 June 2006Ms Hamilton-Smith filed an affidavit from Mr M Gawronski (the Gawronski affidavit) in opposition to the application by Ms George for a sequestration order. In Macks v Viscariello the Full Court summarised the content of the Gawronski affidavit in the following terms:[25]
[25] (2017) 130 SASR 1 at [339].
On 9 June 2006 Ms Hamilton-Smith filed an affidavit of Mr Gawronski in opposition to the sequestration order sought by Ms George. Mr Gawronski alleged in his affidavit that Ms George had told him that Mr Macks was out to “get Ms Hamilton-Smith because of a dispute he had with Mr Viscariello”. He also deposed to an arrangement between Mr Macks and Ms George by which Mr Macks had paid Ms George $4,000 in exchange for her cooperation. He also alleged that Ms George had told him that Mr Macks had promised to pay all of the associated legal fees so he could pursue the debt against Ms Hamilton-Smith using Ms George as a front for Mr Macks’ action.
Ms Hamilton-Smith also filed the Gawronski affidavit in the proceedings in the State Magistrates Court in support of a renewed application to amend her claim.
13 June 2006 Ms Hamilton-Smith’s application to amend her claim in the State Magistrates Court proceedings was dismissed. Judgment was entered against Ms Hamilton-Smith. Mr Douglas, instructed by Ms Flaherty, appeared as counsel for Ms George.
19 June 2006 Ms George filed an affidavit in the sequestration order proceedings denying the assertions contained in the Gawronski affidavit. That affidavit was prepared by Minter Ellison and sworn before Ms Flaherty.
20 June 2006 A sequestration order was made against the estate of Ms Hamilton-Smith by a Registrar of the Federal Magistrates Court.
18 July 2006 Ms Hamilton-Smith filed a Notice of Appeal in this Court against the orders made on 13 June 2006 in the State Magistrates Court.
19 July 2006 On the hearing of the review of the Registrar’s decision of 20 June 2006, a Federal Magistrate made a sequestration order against Ms Hamilton-Smith’s estate. In the course of doing so the Magistrate ruled that parts of the Gawronski affidavit were inadmissible by reason of the form in which they were deposed.
8 August 2006 Ms Hamilton-Smith appealed against the Federal Magistrate’s order made on 19 July 2006 confirming the sequestration order.
12 September 2006 Ms Hamilton-Smith’s appeal against the dismissal of the proceedings in the State Magistrates Court was heard before Gray J. During the hearing Mr Livesey, who appeared as counsel for Ms George, denied that Mr Macks had any interest in the action at all upon being questioned by the Judge. In Macks v Viscariello the Full Court observed:[26]
[26] (2017) 130 SASR 1 at [344]-[345].
On 12 September 2006 the appeal brought by Ms Hamilton Smith against the dismissal of her declaration proceedings in the Magistrates Court came on before Gray J in the Supreme Court. During the hearing Ms Hamilton-Smith relied on Mr Gawronski’s affidavit. It was in the course of the hearing that Mr Livesey QC, upon direct questioning from Gray J, denied that Mr Macks had any interest in the action at all.
Mr Livesey QC gave an explanation for that submission that was accepted by the Primary Judge. His Honour considered that the problem with Mr Livesey QC’s submissions was the failure of Mr Macks and his legal advisors to make a timely decision about whether to disclose the funding arrangement with Ms George.
[footnote omitted]
The appeal before Gray J was adjourned to await the outcome of the appeal in the Federal Court against the order made in the Federal Magistrates Court on 19 July 2006.
21 November 2006 Ms Hamilton-Smith successfully appealed against the order made on 19 July 2006 in Hamilton-Smith v George.[27] Besanko J, who heard the appeal, held, amongst other things, that the Federal Magistrate had erred in rejecting parts of the Gawronski affidavit. Mr Livesey appeared as counsel for Ms George.
26 February 2007 All actions as between Ms Hamilton-Smith, Ms George and Bernsteen were settled.
13 February 2012 The trial in Viscariello v Macks commenced.
February 2013 The trial in Viscariello v Macks concluded. The trial occupied 42 sitting days.
9 December 2014 Kourakis CJ delivered judgment in Viscariello v Macks.[28]
22 December 2017 The Full Court delivered judgment in Macks v Viscariello.[29]
[27] (2006) 247 FCR 238.
[28] (2014) 103 ACSR 542.
[29] (2017) 130 SASR 1.
The relationship between Mr Macks and Minter Ellison in the conduct of the Bernsteen liquidation, the Bernsteen action and the George bankruptcy proceedings formed another component of the context in which these proceedings fall to be understood. In Macks v Viscariello the Full Court explained:[30]
[30] (2017) 130 SASR 1 at [355]-[362].
Mr Macks, in his evidence and submissions at trial, placed reliance on the advice given, or in some circumstances not given, by Minter Ellison during the course of the Bernsteen and George litigation. It is necessary to set out the nature of that relationship and the findings that were made about the relationship.
Mr Macks was an experienced liquidator and had previously used the services of Minter Ellison. Minter Ellison and Mr Macks agreed that Minter Ellison would accept Mr Macks’ instructions on preference recovery actions, and in pursuing the debt owed by Ms Hamilton-Smith, on the basis that their fees in each of the actions would be paid from the pooled proceeds of all of the actions. The agreement was not in writing. Mr Macks stated that the fees were charged at a high but not at a speculative rate. The arrangement with Minter Ellison included a term that if the proceeds of the actions were not sufficient to meet the fees of both the solicitors and the liquidators chargeable to those actions then “there would be discussions in relation to how the proceeds would be allocated between or split between PPB and Minters”. As the Primary Judge found, the arrangement was, in effect, no more than an agreement to negotiate in good faith about how the funds recovered would be divided between them in the event of a shortfall.
As the costs escalated in the Bernsteen matter the relationship between Minter Ellison and Mr Macks eventually became strained. Minter Ellison became concerned about whether they could continue to act “on spec” in relation to the Bernsteen action.
The costs arrangement in relation to the Proceedings stood on a different footing. Mr Macks had agreed to indemnify Minter Ellison and, accordingly, they were entitled to charge for the work. The payment of the outstanding costs on the Proceedings was an issue which contributed to placing a strain on the relationship.
On 14 June 2005 Mr Macks agreed with the suggestion of Minter Ellison that he indemnify Ms George for the costs and disbursements of bringing a bankruptcy petition against Ms Hamilton-Smith. It was suggested that the indemnity be for an amount of $2,000. Mr Macks was advised that it was in both his own and Minter Ellison’s interests, in terms of time and costs, to enter into an arrangement with Ms George in the hope of avoiding a trial in the Bernsteen action by having Ms Hamilton-Smith declared bankrupt. Mr Macks agreed saying that it was an “excellent suggestion”. He told Minter Ellison that he was happy to pay $1,000 towards that strategy. As discussed this arrangement, by which Mr Macks indemnified Ms George, stood in contrast with the arrangement as to the litigation arising out of the liquidation.
The scope of the retainer was said to be “to enforce Mt Barker Magistrates Court judgment … against Ms Hamilton-Smith and in particular to prepare and attend to Federal Magistrates Court proceedings to enable a sequestration order to be made against Ms Tanya Hamilton-Smith”. Ms George was informed that legal fees would be approximately $2,000. The costs became far greater than when the bankruptcy notice was challenged by Ms Hamilton-Smith. Ms George was happy to continue if Mr Macks continued to indemnify her. The obligation of Mr Macks became open ended so that there was no agreement to fix any terms, such as charge out rates, or indeed the basis on which Mr Macks was to pay. The Primary Judge found, correctly in our view, that it effectively became an agreement to indemnify Ms George for as long as she wished to continue.
The Primary Judge was critical of Minter Ellison and Mr Macks in the way the funding arrangements proceeded both in relation to the recovery actions and the Proceedings. In relation to the general retainer of Minter Ellison the judge found:
At a general level, the utility of arrangements of this kind between liquidators and solicitors to facilitate the proper winding up of companies can be accepted. However, provisions should be made to ensure that the work done and the fees charged are not disproportionate to the anticipated proceeds of the actions. In the absence of proportionality, a liquidation may generate litigation which is not in the company’s interests but serves instead the financial interests of the company’s professional advisers. That is contrary to the interest of the company’s creditors and the public more generally.
Importantly, although his Honour was critical of the nature of the costs arrangement between Minter Ellison and Mr Macks he made no finding that it affected the quality of the legal advice provided by Minter Ellison to Mr Macks about the conduct of the liquidation.
[footnote omitted]
Evidential material received
On the hearing of the application and as part of Mr Viscariello’s case I received:
·The plaintiff’s opening submissions dated 28 February 2018 (MFI P1);
·A document entitled, “Plaintiff’s Submissions in Support of the Relief Sought in Paragraphs 3A and 3B in Part 2 of the Fourth Statement of Claim The Question of Invalidity”, dated 28 February 2018 (MFI P2);
·A document of the “history and chronology” of complaints made, dated 28 February 2018 (MFI P3);
·Affidavit of John Viscariello, sworn 18 December 2013 (exhibit P4);
·Second affidavit of John Viscariello, sworn 13 August 2014 (exhibit P5);
·Fourth affidavit of John Viscariello, sworn 9 January 2015 exclusive of paragraphs 2.1 and 2.2 (exhibit P6);
·Fifth affidavit of John Viscariello, sworn 23 January 2015 (exhibit P7). To the extent that this affidavit adduced evidence relevant to the question of whether the delegations were invalid, that evidence was received de bene esse;
·Sixth affidavit of John Viscariello, sworn 23 February 2015 (exhibit P8);
·Eighth affidavit of John Viscariello, sworn 22 January 2018 (exhibit P9). Like exhibit P7, to the extent that this affidavit adduced evidence relevant to the question of whether the delegations were invalid, that evidence was received de bene esse;
·Ninth affidavit of John Viscariello, sworn 9 February 2018 (exhibit P10);
·Plaintiff’s book of documents dated 5 September 2014 (MFI P11);
·Casebooks 1 and 2 used by the Full Court in the appeal heard on 6 July 2016 (exhibit P12). The casebooks were received on the basis that the Court would only have regard to those documents in the casebooks to which, in the course of submissions, either the plaintiff or counsel for the Commissioner took the Court;
·Viscariello book of documents, volume 1 (exhibit P13). This exhibit was also received on the basis that the Court would only have regard to those documents contained in the exhibit that either Mr Viscariello or counsel for the Commissioner took the Court in the course of submissions;
·Viscariello book of documents, volume 2 (exhibit P14);
·Four letters tendered as a bundle (exhibit P21) — two dated 1 September 2015 and 3 September 2015 written by the Commissioner to the Attorney-General, the third dated 9 September 2015 written by the Commissioner to Ms L Alexiadis of the Crown Solicitor’s Office and the fourth dated 21 January 2016 written by the Attorney-General to the Commissioner;
·Email chain spanning 23 February 2016 to 11 July 2016 between the Commissioner, Mr A Harris QC, Ms D Eszenyi and Mr Bourne (exhibit P22).
The transcript does not record the allocation of an exhibit number to a third volume of documents provided by Mr Viscariello. Nonetheless, it does make plain that the third volume was provided to the Court. I have marked the volume as exhibit P15.
Many of Mr Viscariello’s affidavits contain submissions. Where that occurs I have treated the relevant paragraphs as such.
As mentioned, the Commissioner did not seek to cross-examine Mr Viscariello on the content of any of his affidavits.
The Commissioner tendered the following:
·Affidavit of Dymphna Julienne Eszenyi, sworn 2 February 2018 (exhibit D16);
·Letter from Ms Eszenyi to Mr Viscariello, dated 8 September 2017 (exhibit D17);
·Affidavit of Gregory Mornington May, sworn 27 January 2015 (exhibit D18);
·Second affidavit of Gregory Mornington May, sworn 6 February 2015 (exhibit D19);
·Third affidavit of Gregory Mornington May, sworn 29 January 2018 (exhibit D20);
·Letter from the Commissioner to Mr Viscariello dated 9 July 2014 enclosing a copy of the order made by this Court on 1 July 2014 substituting the Commissioner as a defendant in these proceedings (exhibit D23);
·Book of various documents relevant to the proceedings before Parker J[31] and the Full Court[32] (exhibit D24).
[31] Viscariello v Legal Practitioners Conduct Board (2015) 296 LSJS 281.
[32] Viscariello v Legal Practitioners Conduct Board (2017) 128 SASR 387.
Mr Viscariello cross-examined Ms Ezenyi and Mr May on their affidavits.
Is the action out of time?
Rule 200(1) SCCR requires that an action for judicial review be commenced as soon as practicable after the date when the grounds for the review arose and, in any event, within six months after that date. Bearing in mind the nature of the supervisory jurisdiction, the date upon which the grounds for review arose will, generally speaking, be the date upon which the impugned decision was made or action taken. In the present case Mr Viscariello instituted his challenge to the lawfulness of the 15 July 2014, 2 December 2014, 18 December 2014 and 27 January 2015 delegations within time. Each of the delegations were made after these proceedings were first instituted and were incorporated into the proceedings initially by the second interlocutory application and subsequently by the Second Statement of Claim. The second interlocutory application was made approximately one month after the 15 July 2014 delegations were made and was amended to include the subsequent delegations.
No objection was taken to Mr Viscariello’s application to file a Third and then a Fourth Statement of Claim seeking declarations of invalidity. To the extent that he may be out of time to seek this additional relief, bearing in mind the Commissioner’s attitude to Mr Viscariello’s applications to amend, I would grant an extension of time.
With respect to the application for an order in the nature of mandamus, Mr Viscariello’s case is one of the actual or constructive failure to discharge a duty. He contends that the relevant duty was enlivened by his making of complaints against the legal practitioners identified in his Fourth Statement of Claim. He contends that the duty remains enlivened and remains undischarged. As will be seen he has agitated for the progression of the investigation of his complaints for a long time.
It is also to be noted that Mr Viscariello’s case straddles the transition from Board to Commissioner in that whilst the relevant duty was enlivened under the Legal Practitioners Act at a time when the Board was the body responsible for investigating complaints of unprofessional or unsatisfactory conduct, by virtue of the transitional provisions in the Amendment Act, the duty remains live and borne by the Commissioner. Mr Viscariello’s case is that the Commissioner has, in effect, picked up where the Board left off and, like the Board, has not done anything and has no intention of doing anything to advance the investigation of Mr Viscariello’s complaints.
In evidence Ms Eszenyi said that with the exception of the Iles and Jarvis complaints (as will be discussed later in this judgment) the balance of Mr Viscariello’s complaints were yet to be considered by her. The Commissioner gave evidence to the effect that none of Mr Viscariello’s complaints had been resolved.
It seems to me that, generally, a duty once enlivened but not discharged remains amenable to mandamus for so long as it is not discharged. This being so, I do not think it can be said that, insofar as Mr Viscariello seeks mandamus for the non-discharge of the duty to investigate his complaints, that duty remaining live, his application can be said to be out of time. I did not understand him to focus on particular decisions in isolation such as, for example, the decision to hold in abeyance progression of the Flaherty and Livesey complaints pending proceedings in the Legal Practitioners Disciplinary Tribunal (the Tribunal), as giving rise to the relief he seeks, but as evidence indicative of an overall refusal. Accordingly, I consider Mr Viscariello’s application for an order in the nature of mandamus to be within time and that no extension is required. In arriving at this conclusion I consider the relief sought in Part 2 paragraphs 1A and 2 of the Fourth Statement of Claim to be ancillary or complementary to that sought in Part 2 paragraph 1.
Of course, this conclusion is dependent upon the relevant duty being enlivened. The Commissioner did not defend the action on the basis that complaints made by Mr Viscariello were not complaints within the meaning of s 76(1a)(b) of the Legal Practitioners Act or s 77B(2)(b) of the Amended Act, despite Ms Eszenyi not excluding that possibility. Rather his defence to the application for an order in the nature of mandamus was that neither he nor the Board had acted unreasonably, that neither had refused to investigate Mr Viscariello’s complaints, and that, by his delegates, the Commissioner intends to do so.
Mandamus — an actual or constructive refusal to investigate
A. Introduction
It is not disputed that since 2006 Mr Viscariello has made or adopted complaints about the professional conduct of those legal practitioners identified in his Fourth Statement of Claim. It is also not disputed that the complaints he has made remain unresolved. Mr Viscariello contends, and it is not disputed, that the Board and the Commissioner are duty bound to investigate those complaints.
Mr Viscariello further contends that the Board’s, and subsequently, the Commissioner’s inaction in investigating his complaints demonstrates the refusal alleged. It amounts, he contends, to maladministration within the meaning of the Independent Commissioner Against Corruption Act 2012 (SA) and he urges the Court to make a finding to that effect.
Whilst his primary case relies on what he contends is unlawful inaction, he went so far in evidence as to assert that neither the Board nor the Commissioner has any intention of investigating the complaints he has made.
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. In his cross-examination of the Commissioner and Ms Eszenyi I understood Mr Viscariello to assert a conspiracy to prevent any complaint made by him being investigated, one extending back to the days of the Board and in some way joined by the Commissioner. Counsel for the Commissioner appears to have similarly understood Mr Viscariello’s case to go so far. In his written closing submissions counsel for the Commissioner submitted:
1. Despite wide ranging allegations of duplicity, dishonesty, conspiracy and maladministration (as to each of which there is no proper evidentiary basis for the allegations to have been made) the plaintiff has failed to establish an actual or constructive refusal by the defendant to investigate his various complaints.
However, in his written reply submissions Mr Viscariello said:
REPLY TO DEFENDANT’S SUBMISSIONS
1. In reply to:
i.The Defendant does not identify where the “wide ranging allegations of duplicity, dishonesty, conspiracy and maladministration” are said to have been made and against whom each of these allegations was said to have been made by the Plaintiff;
ii.Save and except for subparagraph 4.10.1 of the Plaintiff’s Second Reply which includes a single plea of maladministration, the Fourth Claim and the Second Reply do not include any allegations of “duplicity, dishonesty, conspiracy” against any person and do not include any other allegations of maladministration;
iii.Save for paragraph 89 in the Plaintiff’s Opening Submissions dated 28 February 2018 which alleges ‘duplicitous’ conduct by the Board, there are no other allegations of “duplicity, dishonesty, conspiracy” contained in any of the Plaintiff’s Opening or Closing submissions;
iv.Given that subparagraph 4.10.1 of the Plaintiff’s Second Reply includes a plea of maladministration it is unremarkable that the Plaintiff’s Submissions would include submissions in support of that allegation;
v.To the extent that the Plaintiff’s Exhibits tendered and admitted into evidence include allegations/complaints in the nature of that suggested by the Defendant, the Plaintiff says:
ii. At no time has the Defendant determined that the ‘complaints/allegations are vexatious or frivolous resulting in any of the Plaintiff’s complaints being lawfully closed under the LPA;
iii. The Plaintiff’s evidence has not been challenged or disputed by any person in this proceeding. The Defendant was entitled to cross examine the Plaintiff but elected not to do so. He cannot now complain;
iv. The findings made in Viscariello v Macks provide support for the Plaintiff’s complaints/allegations including the complaints/ allegations made by Ms Hamilton-Smith/the Plaintiff in 2006 that Mr Macks and various solicitors at Minter Ellison conspired to enter into a clandestine funding agreement in June 2005 using, without consent of the creditors, the assets of Bernsteen and Newmore to bankrupt Ms Hamilton-Smith for an improper and collateral purpose and to misled [sic] various Judicial officers into accepting that there was no such agreement and that Mr Macks had no interest or no part to play in the proceedings between Ms Hamilton-Smith and Ms George.
[emphasis in original] [footnotes omitted]
From the above it appears that Mr Viscariello eschews any case of “duplicity, dishonesty, conspiracy”. However, he does not appear to resile from the many allegations he makes in the evidence or the allegations he put to the Commissioner and Ms Eszenyi in cross-examination capable of being characterised as allegations of “duplicity, dishonesty, conspiracy”.
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.
Before considering the evidence it is convenient to set out the relevant principles governing an actual or constructive failure to discharge a statutory duty.
B. The applicable principles
At the outset it is important to bear in mind the nature of the supervisory jurisdiction. In that regard in Attorney-General (NSW) v Quin Brennan J said:[33]
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
[33] (1990) 170 CLR 1 at 35-36. See also Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at [43]-[44] (Gleeson CJ, Gummow, Kirby and Hayne JJ); Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [23] (French CJ, Bell, Keane and Gordon JJ).
It follows that the “scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise”.[34] It also follows that maladministration, generally speaking, will not found illegality of a type that supports a grant of relief in the exercise of the supervisory jurisdiction.[35]
[34] Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 (Brennan J).
[35] NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 at [14] (Gummow J).
Mr Viscariello’s pleaded case that mandamus should issue is founded on the duty to investigate complaints contained in s 76(1a)(b) of the Legal Practitioners Act.[36] In his submissions Mr Viscariello focused upon the duty imposed on the Board by s 76(1a)(b) as if that duty, by virtue of Mr Viscariello’s complaints being made before 1 July 2014, applies equally to the Commissioner. However, sch 2 cl 13(1) of the Amendment Act makes plain that the Commissioner will assume conduct of unresolved complaints received by the Board, as Mr Viscariello’s complaints were and are, as if such complaints had been received by the Commissioner. Schedule 2 cl 14(1) of the Amendment Act then provides:
(1) Subject to this Schedule, the principal Act as amended by this Act applies in relation to—
(a)any complaint received by the Commissioner or for which the Commissioner has assumed the conduct; and
(b)any investigation commenced or continued by the Commissioner; and
(c)any disciplinary proceedings commenced by the Commissioner, the Society or another person or for which the Commissioner has assumed the conduct,
whether the conduct to which the complaint, investigation or proceedings relates occurred before or after the relevant day.
[36] See Fourth Statement of Claim Part 2 paragraph 1.
Thus, any duty borne by the Commissioner relevant to the complaints made by Mr Viscariello must be located in the Amended Act.[37] Counsel for the Commissioner made clear the position in his written closing submissions.[38] In his reply submissions Mr Viscariello did not challenge this, but contended, nonetheless, that the Commissioner had actually or constructively refused to discharge the duty imposed upon him, presumably, by s 77B(2)(b) of the Amended Act.
[37] See also Legal Profession Conduct Commissioner v Richardson (2016) 125 SASR 152.
[38] See paragraphs [9.34]-[9.35].
In view of my understanding of Mr Viscariello’s case, including that it extends to a conspiracy involving both the Board and the Commissioner or adoption by the Commissioner of the Board’s approach, it is necessary to analyse the power and the duty conferred on the Board and the Commissioner in relation to the investigation of complaints made against legal practitioners or former practitioners before considering whether Mr Viscariello has established an actual or constructive refusal to discharge the duty imposed on the Commissioner in relation to any of the complaints he has made. I start with the Board.
The Legal Practitioners Complaints Committee was continued in existence by s 68(1) of the Legal Practitioners Act as the Board. In Viscariello v Legal Profession Conduct Commissioner I said:[39]
[39] (2017) 128 SASR 387 at [121]-[125].
The Board consisted of seven members appointed by the Governor of whom three had to be nominated by the Attorney-General and four by the Law Society. Under s 68(3) of the Legal Practitioners Act the Governor was required to appoint a member of the Board, nominated by the Attorney-General after consultation with the President of the Law Society, to be the presiding member. Further, s 68(6) vested a discretion in the Governor to appoint a deputy of a member of the Board subject to the satisfaction of the qualifying criteria contained in s 68(7). A deputy could act in the place of a member of the Board where the member was absent, or unable, because of a conflict of interest or for any other reason, to act as a member of the Board.
The terms and the conditions upon which a person served as a member of the Board were set out in s 69 of the Legal Practitioners Act. No need arises here to make any further mention of those terms and conditions.
Under s 68(1a) of the Legal Practitioners Act the Board was given the status of a body corporate with perpetual succession and a common seal. It was capable of suing and being sued and was vested with the powers of a natural person. The functions of the Board were set out in s 74. It provided:
74 — Functions of Board
(1) The functions of the Board are as follows:
(a)to investigate suspected unprofessional or unsatisfactory conduct by legal practitioners in accordance with Subdivision 2;
(b)following an investigation, to take action authorised under Subdivision 3 or to lay charges before the Tribunal;
(c)to receive and deal with complaints of overcharging in accordance with Subdivision 4;
(d)to arrange for the conciliation of complaints in accordance with Subdivision 5;
(e)to commence disciplinary proceedings against legal practitioners in the Supreme Court on the recommendation of the Tribunal.
(2) The Board may, with the approval of the Attorney-General, fix, and require the payment of, fees in connection with the performance of functions of the Board under this Act.
(3) The Board may exercise any of its functions or powers in relation to a person who is a former legal practitioner if, at the time of the alleged unprofessional or unsatisfactory conduct or overcharging, the person was a legal practitioner.
The Board’s powers regarding investigations into complaints of unprofessional or unsatisfactory conduct, the laying of charges in the Tribunal for such conduct, conciliation of a complaint and the resolution of a complaint considered to amount to minor misconduct were set out in ss 76 and 82(2) of the Legal Practitioners Act.
The members of the Board had no power independent of that of the collective body. As much was made plain by s 70(2) of the Legal Practitioners Act which provided that a decision of the Board was a decision carried by a majority of members present at a meeting of the Board, a quorum of which consisted of four members of whom not less than two had to be legal practitioners. That said, subject to some restrictions which are not presently relevant, the Board was empowered to delegate any of its powers or functions. On a day to day basis the Board discharged its functions with the assistance of a Director, who was the chief administrative officer of the Board, and staff to whom, no doubt, it delegated functions as required.
[footnotes omitted]
The cost of investigating complaints and conducting disciplinary proceedings against legal practitioners or former legal practitioners was met out of the guarantee fund,[40] a fund set up under s 57 of the Legal Practitioners Act and into which a portion of the statutory interest account, being an account into which the interest earned on the combined trust account is paid,[41] must be paid.[42]
[40] Legal Practitioners Act 1981 (SA), s 57(4) (as it was prior to the Amendment Act).
[41] Legal Practitioners Act 1981 (SA), s 56(2) (as it was prior to the Amendment Act).
[42] Legal Practitioners Act 1981 (SA), s 56(5) (as it was prior to the Amendment Act).
As touched upon in the passage quoted from my judgment in Viscariello v Legal Profession Conduct Commissioner above, the powers necessary to the performance of the Board’s investigative function referred to in s 74(1)(a) are, as that section itself foreshadows, set out in Pt 6 div 2 sub-div 2 which was comprised of s 76. Section 76 provided:
76—Investigations by Board
(1) The Board may, of its own motion, make an investigation into the conduct of a legal practitioner or former legal practitioner who the Board has reasonable cause to suspect has been guilty of unprofessional or unsatisfactory conduct.
(1a) The Board must make an investigation into the conduct of a legal practitioner or former legal practitioner where—
(a)the Board has been directed to make the inquiry by the Attorney-General or the Society; or
(b)a complaint has been received in relation to the conduct of the legal practitioner or former legal practitioner.
(1b) Despite subsection (1a), the Board may determine not to commence or continue an investigation that would otherwise be required as a result of receipt of a complaint if it is apparent to the Board that the complaint is frivolous or vexatious or if the Board is satisfied that the subject matter of the complaint has been resolved prior to commencement or completion of an investigation.
(2) No direction may be given to the Board under this section unless the Attorney-General or the Society (as the case may require) has reasonable cause to suspect that the legal practitioner or former legal practitioner to whom the proposed investigation relates has been guilty of unprofessional or unsatisfactory conduct.
(3) For the purposes of an investigation the Board, or a person authorised by the Board to exercise the powers conferred by this subsection, may—
(a)by notice in writing, require specified documents, or documents of a specified class, in the custody or control of a prescribed person to be produced at a time and place specified in the notice; and
(b)at any time during ordinary business hours, inspect any documents in the custody or control of a prescribed person; and
(c)seize or make notes or copies of any documents produced in accordance with this subsection, or take extracts from them.
(4) A person who—
(a)wilfully delays or obstructs the Board or an authorised person in the exercise of powers conferred by subsection (3); or
(b)being a prescribed person, refuses without reasonable excuse to produce a document when required to do so in accordance with subsection (3),
is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for one year.
(4a) The Board may, by notice in writing, require a legal practitioner or former legal practitioner whose conduct is under investigation to make a detailed report to the Board, within the time specified in the notice, in relation to any matters relevant to the investigation.
(4b) A legal practitioner or former legal practitioner must comply with a requirement under subsection (4a).
Maximum penalty: $10 000 or imprisonment for one year.
(5) In this section—
financial institution means an ADI, insurance company, trustee company, broker or other body or person that carries on a business involving the acceptance of money on deposit or by way of investment;
prescribed person means—
(a)the legal practitioner or former legal practitioner whose conduct is under investigation; or
(b)a person who is, or was formerly, the employer, employee or partner of the legal practitioner or former legal practitioner; or
(c)the person (including a legal practitioner or the Legal Services Commission) who instructed the legal practitioner or former legal practitioner whose conduct is under investigation in the matter in relation to which that conduct occurred or a servant or agent of the person who instructed the legal practitioner or former legal practitioner; or
(d)a financial institution with which the legal practitioner or former legal practitioner has deposited or invested money; or
(e)an auditor or inspector employed or appointed to make an audit or examination of accounts of the legal practitioner or former legal practitioner under Division 5 of Part 3.
It is plain that s 76(1a)(b) imposes a duty on the Board to investigate a complaint received in relation to the conduct of a legal practitioner or former legal practitioner. The Commissioner did not contend to the contrary.
Having regard to the functions of the Board, and in particular s 74(1)(a) and to the action that may be taken following an investigation under s 76,[43] a complaint made under s 76(1a)(b) must be one concerning unprofessional or unsatisfactory conduct. Unprofessional and unsatisfactory conduct are defined in s 5 of the Legal Practitioners Act as follows:
unprofessional conduct, in relation to a legal practitioner, means—
(a) an offence of a dishonest or infamous nature committed by the legal practitioner in respect of which punishment by imprisonment is prescribed or authorised by law; or
(b) any conduct in the course of, or in connection with, practice by the legal practitioner that involves substantial or recurrent failure to meet the standard of conduct observed by competent legal practitioners of good repute;
unsatisfactory conduct, in relation to a legal practitioner, means conduct in the course of, or in connection with, practice by the legal practitioner that is less serious than unprofessional conduct but involves a failure to meet the standard of conduct observed by competent legal practitioners of good repute.
[43] See Legal Practitioners Act 1981 (SA), ss 77, 77AA, 77AB and 82(2) (as it was prior to the Amendment Act).
It may be accepted that a complaint triggering the duty imposed by s 76(1a)(b) need not be in any particular form, although the duty is not triggered by just any complaint. The duty is only triggered by a complaint that alleges unprofessional or unsatisfactory conduct within the meaning of the definitions contained in s 5. Further, it is an allegation of suspected unprofessional or unsatisfactory conduct. A suspicion is “a state of conjecture or surmise where proof is lacking”.[44] Still the allegation must be one of suspected facts which, if proved, would amount to unprofessional or unsatisfactory conduct.
[44] Hussien v Chong Fook Kam [1970] AC 942 at 948 (Lord Devlin); George v Rockett (1990) 170 CLR 104 at 115 (The Court).
The concepts of unprofessional and unsatisfactory conduct as defined are both broad and complex. They require an understanding of legal practice and the standards that it is expected that a competent practitioner of good repute will meet. The lay client cannot be expected unassisted to articulate a complaint against his or her lawyer that, if proven, will amount to unprofessional or unsatisfactory conduct. That does not mean that the purported complaint should be rejected, just that the Board should inquire further and assist.
Bearing in mind the range of person who may make a complaint, the fact that many will not be legally trained, and the complexity of the concepts of unprofessional and unsatisfactory conduct, it must have been contemplated by the legislature that the Board would develop a process for handling complaints that would include, if necessary, seeking further detail from a purported complainant in order to understand the purported complaint and appreciate its nature. That process may result in a purported complaint being rejected as being, in effect, not a complaint, because it is not one that has the capacity to fall within the definitions of unprofessional or unsatisfactory conduct, or, being accepted as a complaint that does fall with the statutory definitions and thus does trigger the duty to investigate. If the latter occurs, s 76(1b) may be engaged. If not, an investigation must ensue, but if at any stage the investigation reveals the complaint to be frivolous or vexatious or the complaint is resolved, the investigation may be ceased.
Section 76 confers powers that may be exercised in the course of an investigation, but does not prescribe how an investigation should be conducted. Further, the Act does not prescribe a time limit within which an investigation must commence. I accept that without imposing some limit the duty imposed by s 76(1a)(b) is illusory.[45] Generally, where statutes impose a duty without prescribing a time limit within which that duty is to be discharged, they are construed as requiring that the duty be discharged within a reasonable time.[46] Whether the repository of power has failed to discharge the duty imposed due to delay is determined by asking whether the ordinary person could consider the delay justified or appropriate in all the circumstances and not capricious or irrational.[47]
[45] O’Reilly; Ex parte Australena Investments Pty Ltd (1983) 50 ALR 577 at 578 (Murphy J).
[46] See, for example, O’Reilly; Ex parte Australena Investments Pty Ltd (1983) 50 ALR 577; Thornton v Repatriation Commission (1981) 35 ALR 485.
[47] Thornton v Repatriation Commission (1981) 35 ALR 485 at 491-492 (Fisher J).
In NAIS v Minister for Immigration and Multicultural and Indigenous Affairs the High Court was concerned with the question of whether delay between the hearing of a review of a refusal to grant a protection visa and the handing down of judgment resulted in a denial of procedural fairness.[48] That question does not arise in this case. However, the following observations made by Gummow J are of relevance:[49]
The range of powers conferred by various laws of the Commonwealth upon its officers varies greatly. So does the institutional framework for the exercise of those powers. This litigation concerns delay in administrative decision-making at a second level, by way of review by a statutory tribunal of decisions of delegates of a Minister. The procedural arrangements for such a tribunal, including (as in this case) the giving of written reasons, may be far more elaborate than those for decision-making at other levels in public administration.
Observations by LeBel J in the Supreme Court of Canada in Blencoe v British Columbia (Human Rights Commission) may usefully be repeated here. LeBel J observed that there are different kinds of delay and that not all administrative bodies are the same. Delay in deciding an individual case may relate to the special complexity of the subject matter as well as to the inattention of the decision-maker. The former may encompass necessary delay. Further, the diversity of the powers, mandates and structures of administrative bodies makes it inappropriate to apply particular standards from one context to the other.
Among the sources of delay in administrative decision-making which have been identified in the United States are the presence of a large workload, the complexity of issues entrusted to administrative decision-makers, inadequate funding and staffing and legislatively required time-consuming procedures. It may be said to be a responsibility of the executive and legislative branches of government to the public at large to alleviate such sources of delay. It is another matter to enlist the judicial branch to require an outcome or to set aside a delayed outcome and remand for redetermination. Even in a system where there is constitutionally mandated "due process", such as the United States, the most effective remedies for administrative delay have been said to lie in the political rather than the judicial process.
Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the ECHR) entitles “everyone ... to a fair and public hearing within a reasonable time” in the determination of “civil rights and obligations”, as well as of any criminal charge. In Dyer v Watson, Lord Bingham of Cornhill considered the Strasbourg case law applying the ECHR to a range of matters, including delayed determinations of civil rights and obligations by administrative bodies. Lord Bingham concluded that “[t]he threshold of proving a breach of the reasonable time requirement is a high one, not easily crossed”.
[footnotes omitted]
[48] (2005) 228 CLR 470.
[49] NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 at [17]-[20].
I also bear in mind that Mr Viscariello, whilst unrepresented, is legally trained and until relatively recently was in practice. I very much doubt that the rules of preclusion were unknown to him. He clearly has the ability to undertake the necessary research. In fact in one directions hearing he referred to his having undertaken some research into estoppel.
The application to amend has not occasioned any delay in the trial. No interlocutory steps needed to be revisited. There was, however, additional costs incurred in preparing argument in reply.
I remind myself that this is not an occasion to punish a party.
No explanation has been provided on oath as to why the special defence contained in the Second Defence was imperfectly pleaded. Bearing in mind the extent of the Second Defence I do not think it can be said that the amendment will occasion Mr Viscariello any greater anxiety than he has already been occasioned.
In all the circumstances I would grant the application but limit it to the special defences of res judicata and issue estoppel. Perhaps generously, I consider Mr Viscariello should have had the opportunity to call evidence in response to any assertion of Anshun estoppel. He should have had time in advance of the commencement of the trial, without the pressure of the trial to consider his response factually and legally. I appreciate that from November 2017 to the date of trial matters moved quickly, but once Mr Viscariello indicated an intent to seek declarations of invalidity the rules of preclusion obviously came into view. Both counsel and solicitors for the Commissioner have been involved at all stages of these proceedings. Minds should have been turned to the operation of the rules preclusion before the first day of the trial and particulars provided, at a minimum, before Mr Viscariello closed his case.
I allow the application to file the Third Defence but strike from that the defence paragraphs 4.13 and 4.14 (Anshun estoppel).
It is convenient at this point to deal with the question of whether Mr Viscariello should be granted permission to proceed with his application to the extent that it seeks the relief set out in Part 2 paragraph 3A and 3B of his Fourth Statement of Claim. The Commissioner did not object to Mr Viscariello filing his Fourth Statement of Claim. The Full Court’s conclusion that the impugned delegations were unlawful suggests the question of invalidity is an important one. It is reasonably arguable. In the circumstances I grant Mr Viscariello permission to proceed in relation to the relief subject of Part 2 paragraphs 3A and 3B of the Fourth Statement of Claim.
In his written submissions Mr Viscariello relies upon the conclusion reached by a majority of the Full Court in Viscariello v Legal Profession Conduct Commissioner that the impugned delegations were made in breach of s 17 of the Accountability Act. He contends:
81.On appeal from the Judgment of Parker J in this proceeding the Plaintiff succeeded in having the majority of the Full Court hold:
a. At [251] that the 15 July 2014 delegation to Mr Bourne was not authorised by the Attorney General in breach of s 17 of the Accountability Act;
b. At [172], [173] and [251] the 15 July 2014 delegation to Mr Anderson was likewise not authorised by the Attorney General in breach of s 17 of the Accountability Act;
c. At [233] the 2 December 2014 delegation to Mr Bourne was not authorised by the Attorney General in breach of s17 of the Accountability Act;
d. At [233] that the 27 January 2015 delegation was not authorised by the Attorney General in breach of s17 of the Accountability Act. The 27 January 2015 delegation was the ultimate source of power.
e. It was pursuant to the above series of unauthorised delegations made by the Defendant to Mr T. Bourne that Mr T Bourne during the period 15 July 2014 to 15 September 2017, purported:
i.to appear (including instructing counsel Mr A Harris QC) as the Defendant under the LPA to conduct the defence in the herein proceedings [82];
ii.to appear (including instructing counsel Mr S Thomas) as the Defendant to conduct a defence in the Plaintiff’s Rule 242 Action - SCCIV-806-14 where the Plaintiff sought to have his strike off order set aside;
iii.to either exercise or refuse to exercise or ‘actually’ or ‘constructively’ the jurisdiction under the LPA to carry out its public duty to investigate the complaints received by it from the Plaintiff.
82.The question is whether or not the Commissioner’s failure to obtain the written authorisation of the Attorney General in breach of s17 of the Accountability Act renders the delegations not only unlawful as held by the Full Court but also invalid and of no legal force and effect.
[emphasis in original] [footnotes omitted]
To Mr Viscariello’s list must be added the 18 December 2014 delegation to Mr Bourne.
It is plain from the way in which Mr Viscariello has framed his argument that he does not seek to re-litigate the relief sought in Part 2 paragraphs 3 and 4 of the Fourth Statement of Claim.[117] Rather, Mr Viscariello’s argument accepts the majority opinion in the Full Court and builds upon it; that is, he accepts that the question of whether declarations of unlawfulness should be made in relation to the impugned delegations has been determined, but, instead, invites the Court now to consider making declarations of invalidity on the basis of the same breaches of s 17 of the Accountability Act as were found by the Full Court to have occurred in relation to the impugned delegations.
[117] See MFI P2 at [87]. See also, Plaintiff's Submissions in Opposition to the Defendant's Application filed 7 March 2018 for Permission to File a Third Defence (21 March 2018) at [18]-[19], [39]-[40].
It should also be made plain that the parties accepted that the basis upon which I should determine the question of whether declarations of invalidity should be made in relation to the impugned delegations was the holdings of the majority in Viscariello v Legal Profession Conduct Commissioner.[118]
[118] (2017) 128 SASR 387.
At the hearing of the second interlocutory application Parker J considered the question raised by paragraph 3 of the second interlocutory application as one seeking declarations of invalidity and decided that question. In the light of this the Commissioner contends that Parker J decided the very question now raised by Mr Viscariello in Part 2 paragraphs 3A and 3B of the Fourth Statement of Claim. The Commissioner further contends that as Mr Viscariello did not appeal Parker J’s judgment on the question of whether a breach of s 17 of the Accountability Act resulted in the delegations and all actions undertaken pursuant to the power delegated being invalid, he is precluded from doing so now. Part 2 Paragraph 4 of the Third Defence asserts, in effect, that despite his articulation of the relief he sought in the second interlocutory application as seeking declarations of unlawfulness, in the course of making his argument before Parker J Mr Viscariello sought declarations of invalidity.
In Viscariello v Legal Profession Conduct Commissioner Kourakis CJ held:[119]
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.
[119] (2017) 128 SASR 387 at [4].
I said:[120]
In his first ground of appeal the appellant complains that the judge erred in that he did not consider whether to make a declaration of unlawfulness despite his conclusion as to validity in relation to the 15 July 2014 delegation made to Mr Bourne. Whilst the application of s 17 of the Accountability Act to the Commissioner is challenged by the respondent’s Notice of Contention, should the Notice of Contention fail, the question of this Court making a declaration of unlawfulness at least in relation to the 15 July 2014 delegation to Mr Bourne arises. If the appellant succeeds in satisfying this Court, contrary to the judge’s conclusions, that any of the other delegations were unlawfully made, the question further arises.
In the circumstances it cannot be said that the appeal is moot.
I note that in his reasons for the costs order that he made, the judge said:
Counsel for the Commissioner has described as disingenuous the assertion by Mr Viscariello that he never contended that the delegations made by the Commissioner to Mr Bourne were invalid. I agree. At no point did Mr Viscariello ever suggest to the Court that he was not seeking to have the delegations found invalid. Mr Viscariello submitted at directions hearings before me that Mr Bourne was not entitled to appear. The only possible basis for such a submission could be that the making of the delegations to Mr Bourne had not only not been done in compliance with s 17 of the [Accountability Act] but also that the delegations were invalid and thus of no effect.
The respondent did not seek to support this observation in this Court. I have read the transcript of the argument on 28 January 2015. The appellant did refer the judge to Project Blue Sky Inc v Australian Broadcasting Authority and, in particular, to [100] of the joint reasons and the second part of that paragraph. He did state that it was a declaration of unlawfulness that he pursued. His course could be considered unusual, which explains why it was overlooked by the judge and the respondent, but I do not think it can be said unequivocally that he did not seek the relief stated in his interlocutory application.
[footnotes omitted]
[120] Viscariello v Legal Profession Conduct Commissioner (2017) 128 SASR 387 at [115]-[118].
Lovell J agreed generally with my reasons.
As the passage quoted above from my judgment in Viscariello v Legal Profession Conduct Commissioner indicates, I arrived at my conclusion after reviewing the transcript of submissions made before Parker J in addition to having regard to the relief sought as stated in the second interlocutory application. During submissions before Parker J the following exchange took place between his Honour and Mr Viscariello:
MR VISCARIELLO: … If your Honour goes to 17(3): ‘A senior official must ... to resolve the conflict.’ So the minister decides how the conflict’s got to be resolved, not the senior official. By making the delegation, he’s already said well I’ve got a conflict so this is how I’m going to resolve it. I’m going to resolve it by appointing Mr Anderson and Mr Bourne. That’s how I’m going to resolve it.
HIS HONOUR: That was the original appointment?
MR VISCARIELLO: Yes and I’m going to tell them what to do, not only -
HIS HONOUR: Well did he.
MR VISCARIELLO: He did, if one looks at the first delegation he told them what to do, right? Now -
HIS HONOUR: In total if you’re delegating your powers to deal with a particular matter, you’re entitled to define what that matter is aren’t you?
MR VISCARIELLO: Absolutely.
HIS HONOUR: Did he go beyond that in your submission?
MR VISCARIELLO: He did and I’ll take you to the second one more relevantly and why I say he did that. In relation to the first delegation, I mean we don’t even have anything. We’ve got no evidence before the court that the minister gave any direction whatsoever.
HIS HONOUR: If the minister - this is presumably only relevant to the later delegation, if the minister approves the proposed delegation, isn’t that implicitly the direction?
MR VISCARIELLO: Well yeah I’ll come to the second one in a moment, but I’m dealing with the first one made on 15 July, because there’s all these different timeframes and your Honour might not be with me for a particular timeframe, but then might say well look the delegations made up to this point were invalid and the ones made after were valid. I don’t know what your Honour’s going to do, but it’s relevant for the 15 July delegation that there’s nothing, no affidavit material put to confirm or show that the disclosure was made, and that the minister gave any direction whatsoever.
HIS HONOUR: All right, so you as I understand it are relying on the words in s.17A(1)(c)(ii) not take any action or further action -
MR VISCARIELLO: Correct.
HIS HONOUR: - as invalidating the delegation, that’s your submission is it?
MR VISCARIELLO: Correct yes and in addition to that, I go further and say the delegation itself is bad because - and if your Honour wants me to take -
HIS HONOUR: Isn’t that a separate question though?
MR VISCARIELLO: Well it is a separate question, but if your Honour says well no I disagree with you Mr Viscariello, it wasn’t required or I don’t read the Act that way. Mr May was entitled to notwithstanding what I say is the reading.
HIS HONOUR: What my question is, is that sub-s.1 is expressly a penal provision, there’s potentially a fine attached to it.
MR VISCARIELLO: Yes.
HIS HONOUR: So there’s a prohibition you must not take any further action if you’ve got a relevant conflict without disclosing it in writing to the relevant minister and acting in accordance with any direction he or she may give, so there’s a penal provision. But does that go to the invalidity of the action taken, a sort of Project Blue Sky issue?
MR VISCARIELLO: Well I’ve referred to that and said that I think the position is it says that look, courts are reluctant to overrule government decision made. But in my case -
HIS HONOUR: It’s really a matter of construction of the Act though isn’t it?
MR VISCARIELLO: Yeah, I can apply to the court and say well look, Mr May’s been conducting these proceedings. The board’s been conducting these proceedings, defending it and I say unreasonably and I’ve been put to costs and expense and waste all this time, and I’m entitled to come to this court and seek a declaration that all those acts were unlawful.
HIS HONOUR: All right, so that’s your argument?
MR VISCARIELLO: That’s the – I’ve got a copy of the relevant passages out of that case to which your Honour referred to, Project Blue Sky.
HIS HONOUR: Thank you.
MR VISCARIELLO: So it’s down at the bottom of page - or the second page in starting with ‘Although’, para.100 and it then goes across.
HIS HONOUR: That was the point I was alluding to.
MR VISCARIELLO: Yeah indeed. So ordinarily you might say
And later:
HIS HONOUR: The crucial question is, if you’re right in all of this argument, what decisions taken by Mr Bourne in the period between the issue of this first delegation and the issue of a second delegation you say - what do you say the effect of the improper delegation is on the action Mr Bourne took.
MR VISCARIELLO: Well respectfully I think that’s the wrong question. I think that - I don’t need to now establish that he’s taking into account a relevant consideration.
HIS HONOUR: You’re just saying he didn’t have any power, that’s your argument is it.
MR VISCARIELLO: Yes. The first thing is he didn't have any power. Secondly, I say the delegation is bad.
The Commissioner contends that in these passages Mr Viscariello travelled beyond the relief sought in his interlocutory application and sought declarations of invalidity. That may be so, but no application was made to amend the interlocutory application. The ambit of the forensic contest remained as defined by the second interlocutory application. As much is reflected in the order made by Parker J:
For the reasons given in the judgment the plaintiff’s application challenging the Legal Profession Conduct Commissioner’s delegations is dismissed.
That is to say, it was the second interlocutory application dated 14 August 2014 that was dismissed and the orders made determined the question of whether to grant the relief sought in that application.
To the extent that the Full Court granted Mr Viscariello permission to file the Second Statement of Claim and treated the hearing before Parker J as including the trial of the relief sought in Part 2 paragraphs 3 and 4, its orders likewise only addressed the question of whether declarations of unlawfulness should have been made.
The upshot of this is that, for the purposes of the rules of preclusion, the question of whether declarations of invalidity should be granted has not been conclusively determined. In the circumstances it cannot be said that the issue of whether declarations of invalidity should be granted is res judicata; it cannot be said that “the very right or cause of action claimed or put in suit has in the former proceedings [before Parker J and the Full Court] passed into judgment, so that it has merged and no longer has an independent existence…”.[121] Nor can it be said that in arriving at the orders made, first by Parker J and subsequently by the Full Court, that the questions of law that underpin determination of the question whether declarations of invalidity should be made were determined. The Full Court certainly did not undertake that exercise. To the extent that Parker J did, the effect of the Full Court’s judgment is that he erred in that he was not required to undertake such task in determining the second interlocutory application. The question of whether the impugned declarations were invalid was not a question necessarily decided by the Full Court’s judgment and should not have been decided as a matter of law by Parker J.[122] For these reasons I do not accept the contention that Mr Viscariello is precluded from seeking the relief sought in Part 2 paragraphs 3A and 3B of the Fourth Statement of Claim on the grounds that the issue is res judicata or has otherwise been determined.
[121] Blair v Curran (1939) 62 CLR 464 at 532 (Dixon J). See also Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597 (Gibbs CJ, Mason and Aickin JJ).
[122] Blair v Curran (1939) 62 CLR 464 at 532 (Dixon J).
I turn to deal with the question of Anshun estoppel in the event that I am wrong to have refused the Commissioner leave to amend his defence and include paragraphs 4.13 and 4.14 of the Third Defence.
As previously mentioned in these reasons, the effect of the Full Court’s judgment is that, respectfully, Parker J misunderstood the task that the application required be undertaken. It may be that Mr Viscariello’s submissions as set out in the passages above contributed to Parker J’s misunderstanding as to what was being asked of him, but, nonetheless, Mr Viscariello did not seek declarations of invalidity in his application. His submissions, whilst touching upon invalidity in response to questions asked, nonetheless sought declarations of unlawfulness.
The question arises, if Parker J was not required to determine whether declarations of invalidity should issue, how can it now be said that Mr Viscariello is precluded from seeking such relief ?
The applicable principle is located in judgment of Sir James Wigram V C in Henderson v Henderson, namely:[123]
… where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.
[123] (1843) 3 Hare 100 at 115; 67 ER 313 at 319 as quoted with approval in Port of Melbourne Authority v Anshun PtyLtd (1981) 147 CLR 589 at 598 (Gibbs CJ, Mason and Aickin JJ).
Strictly speaking I do not think this principle is engaged in the present case. That is because this is not a second or subsequent action. This is, in truth, the trial of the initial application. As mentioned earlier in these reasons, to the extent that the proceeding before Parker J is to be treated as the trial of the relief sought in Part 2 paragraphs 3 and 4 it is to be treated as the trial of a separate issue under r 211 SCCR. All that has subsequently occurred is that Mr Viscariello has amended his Statement of Claim to seek additional relief. True that could have been done earlier. True there is a close affinity between questions of unlawfulness and invalidity. True there is an element of opportunism in Mr Viscariello now seeking declarations of invalidity, but his application to amend his Statement of Claim was not objected to and the Commissioner does not contend that he has engaged in an abuse of process. The position in which the Court now finds itself may be considered unique but it is the product of the second interlocutory application travelling beyond what was truly interlocutory as explained by the Full Court and the approach subsequently taken to regularise matters.
For these reasons I would hold that Mr Viscariello is not precluded, applying the principles underpinning res judicata, issue estoppel and Anshun estoppel, from seeking declarations of invalidity.
It is convenient at this point to record that having arrived at the conclusion that the rules of preclusion do not operate to prohibit Mr Viscariello from seeking declarations of invalidity, I admit exhibits P7 and P9 into evidence.
I turn to the question of whether declarations of invalidity should be made in relation to the impugned declarations.
In Project Blue Sky v Australian Broadcasting Authority McHugh, Gummow, Kirby and Hayne JJ said:[124]
An act done in breach of a condition regulating the exercise of a statutory provision is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of that condition. Unfortunately a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
[footnote omitted]
[124] (1998) 194 CLR 355 at [91].
Later in the joint reasons, after eschewing the “continued use of the “elusive distinction between directory and mandatory requirements” and the division of directory acts into those which have substantially complied with a statutory command and those which have not”,[125] the joint reasons said:[126]
A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”.
[footnotes omitted]
[125] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [93] (footnote omitted).
[126] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [93].
Mr Viscariello referred me to numerous authorities in which the question of whether the breach of a limitation imposed on a power resulted in any act done in exercise of the power being invalid. Those authorities all deal with different statutory contexts, and, consequently, are only of general assistance. Each case will turn on the particular statutory scheme under consideration.
The Commissioner is a senior official for the purposes of the Accountability Act.[127] Relevantly, ss 17 and 18 of that Act provide:
[127] Amended Act, s 75.
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)Without limiting the effect of this section, a senior official will be taken to have an interest in a matter for the purposes of this section if an associate of the senior official has an interest in the matter.
(5)If a senior official makes a disclosure of interest and complies with the other requirements of subsection (1) in respect of a proposed contract—
(a) the contract is not liable to be avoided; and
(b) the senior official is not liable to account for profits derived from the contract.
(6)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.
(7)A contract may not be avoided under subsection (6) if a person has acquired an interest in property the subject of the contract in good faith for valuable consideration and without notice of the contravention.
(8)This section does not apply in relation to a conflict or potential conflict between a senior official’s duties and a pecuniary or other personal interest while the senior official remains unaware of the conflict or potential conflict, but in any proceedings against the senior official the burden will lie on the senior official to prove that he or she was not, at the material time, aware of the conflict or potential conflict.
18—Civil liability for contravention of Division
(1)If a person is convicted of an offence against this Division, the court by which the person is convicted may, in addition to imposing a penalty, order the convicted person to pay to the relevant Minister—
(a) if the court is satisfied that the person or any other person made a profit as a result of the contravention—an amount equal to the profit; and
(b) if the court is satisfied that any loss or damage has been suffered as a result of the contravention—compensation for the loss or damage.
(2)If a person contravenes this Division, the relevant Minister may (whether or not proceedings have been brought for the offence) recover from the person by action in a court of competent jurisdiction—
(a) if the person or any other person made a profit as a result of the contravention—an amount equal to the profit; and
(b) if any loss or damage has been suffered as a result of the contravention—compensation for the loss or damage.
The first observation to be made is that s 17(1)(c) of the Accountability Act operates much in the same was as s 70(1)(a) of the Australian Broadcasting Corporation Act 1983 (Cth) considered in Australian Broadcasting Corporation v Redmore Pty Ltd.[128] Section 70(1)(a) provided that the Corporation shall not, without the approval of the Minister, enter into a contract under which the Corporation either paid or received an amount exceeding $500,000. Mason CJ, Deane and Gaudron JJ observed:[129]
As the judgments in the courts below demonstrate, the question whether s. 70(1) should be construed as confining power or as directory of the manner of its exercise is a finely balanced one. The words of the sub-section are not compelling either way. In strict terms, they are directory. They speak of the exercise (“shall not ... enter into a contract”), rather than the existence, of power. Their direction is to the A.B.C. and not to an innocent outsider having contractual dealings with the A.B.C., who would be likely to act on the basis that the A.B.C. would have complied with any statutory duty to obtain the approval of its responsible Minister before purporting to enter into a contract of a kind which required such approval. In that regard, it is relevant to note that the sub-section neither requires that the Minister’s approval be in writing nor establishes any procedure by which a person dealing with the A.B.C. can ascertain whether the Minister has given his approval to the precise terms of a particular contract. Nor do the words of s. 70(1) either 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. If the statutory direction to the A.B.C. not to enter into a contract of the specified kind without the approval of the Minister has the effect either of confining the actual powers of the A.B.C. or of invalidating any contract with an innocent outsider entered into otherwise than in compliance with its terms, it must be by reason of a legislative intent to be discerned in the words of the sub-section construed in the context of the Act as a whole.
As a matter of general structure, provisions of the Act which in terms confer or confine the actual powers of the A.B.C. are collected in Pt IV which is headed “Powers and Duties of the Corporation”.
[128] (1989) 166 CLR 454.
[129] Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454 at 457.
The same may be said here. Section 17(1)(c) speaks to the exercise of power, not the existence. It speaks to the senior official not the public at large. The public at large would be entitled to assume that s 17(1)(c) had been complied with if a senior official to whom the Accountability Act applies acts in circumstances that engage the section.
Whilst s 17(1)(c) does require that Ministerial authorisation be in writing, such authorisation is not published to the world or at all. It is relevant here to also consider the range of office holder falling within the definition of a senior official for the purposes of the Accountability Act and the diverse functions committed to them.[130] The point being that just because authorisation must need be in writing it may no more be available to a member of the public then if writing were not required.
[130] Public Sector (Honest and Accountability) Act 1995 (SA), s 2(1); for example, the Chief Officer of the South Australian Metropolitan Fire Service and the Auditor-General.
Further again, to the innocent party the fact of the Commissioner or senior official being in a position of conflict will often not be known nor discernible by reasonable inquiry. I appreciate that some care must be taken in relying upon convenience as an indicator of legislative intent, but, nonetheless, in the present case it points away from invalidity being the consequence of any breach of s 17(1)(c).
In Viscariello v Legal Profession Conduct Commissioner Parker J said:[131]
Section 17(6) of the PSHA Act provides that if a senior official has not complied with ss 17(1) in relation to a contract, the relevant Minister may avoid the contract. That right is qualified by s 17(7), which provides that a contract may not be avoided if a person has acquired an interest in property under the contract in good faith for valuable consideration and without notice of the contravention.
The conferral of a right upon Ministers to avoid a contract strongly suggests that a failure to comply with the disclosure obligations under s 17(1) was not intended by the legislature to invalidate all decisions where there had not been compliance. If all such decisions were intended to be invalid, it would not have been necessary to enact s 17(6).
There are additional considerations that also suggest a failure to comply with s 17(1) is not intended to invalidate a decision or action. Great inconvenience could result if every decision, regardless of the particular circumstances, is rendered invalid and inoperative by s 17(1). It cannot be assumed that in every case where a decision-maker has a personal or pecuniary interest in the outcome of a decision that they will make an inappropriate or improper decision. For example, a public official may be required to decide amongst a number of competing applicants for some form of licence or permission. One of the applicants might be a close family member. Section 17(1)(c) requires that the senior official should disclose that personal interest to the relevant Minister and not take any action without having first received written authorisation from the Minister. However, despite a failure to comply with s 17(1)(c), the official may have properly decided the matter and granted the permission or licence to a person other than the close relative. If Mr Viscariello is correct in his contention that s 17(1)(c) automatically invalidates all decisions taken where there is a conflict of interest, the consequences for an innocent party could be very harsh. In the example I have given, the person granted permission may have made substantial financial commitments or significant decisions in reliance upon the validity of the approval without any knowledge that an unsuccessful applicant was a relative of the decision maker.
The possibility of such difficulties and potentially harsh consequences strongly suggests that s 17(1), and the other analogous provisions in the PSHA Act, were not intended to invalidate decisions that have not been made in accordance with the written directions of a relevant Minister after disclosure of the conflict. I consider that, like the provision of the Australian Broadcasting Corporation Act 1983 considered by the High Court in Redmore, these provisions are directed at the internal management of public sector agencies.
If a decision made by an official contrary to s 17(1) (and equivalent provisions) is amenable to judicial review it may potentially be quashed by this Court. The grant of such a remedy is in the discretion of the Court thereby enabling harsh and unjust outcomes to be avoided.
Alternatively, if the impugned decision involved the awarding of a contract, that contract may be avoided at the option of the Minister. I also note that under s 18, and also under the analogous provisions in other Divisions of the PSHA Act, if a person is convicted of an offence relating to a conflict of interest or a failure to act honestly, a court may, in addition to imposing a penalty, order that the person pay to the relevant Minister an amount equal to any profit made as a result of the contravention or, if loss or damage has been suffered, compensation.
In addition to the risk of criminal prosecution, a person who has acted contrary to their obligations under the conflict of interest provisions in the PSHA Act would also be potentially liable to disciplinary action or removal from public office.
The availability of these alternative remedies and sanctions reinforces my conclusion that s 17(1) and like provisions in the PSHA Act were not intended to directly render invalid decisions made without receiving written Ministerial directions as to how to deal with the conflict. These provisions were intended to regulate the behaviour of public sector decision-makers while leaving it open to the relevant Minister (in the case of contracts) or the Court to set aside a decision.
[131] (2015) 296 LSJS 281 at [81]-[88].
Respectfully, I agree.
Accordingly, in my view the impugned delegations were not invalid.
Hardiman principle
In his opening submissions Mr Viscariello attempted to invoke the Hardiman principle as in some way supporting his entitlement to the relief he seeks.[132] He did not pursue the submission in his closing submissions. In the event that it is not abandoned, I observe the issue was argued before Parker J and determined.[133] It was not pursued on appeal. It seems to me that Mr Viscariello is estopped from pursuing the same point before me. If that is incorrect, I indicate I agree with Parker J’s analysis of the principle. In my view the Hardiman principle, which is not a rule of law, does not preclude the Commissioner from defending these proceedings through his delegate.
[132] R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36 (The Court).
[133] Viscariello v Legal Profession Conduct Commissioner (2015) 296 LSJS 281 at [55]-[61].
Conclusion
I dismiss the application.
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