Viscariello v Legal Profession Conduct Commissioner (No 2) - [2017] SASCFC 152

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
VISCARIELLO v LEGAL PROFESSION CONDUCT COMMISSIONER (NO 2)
[2017] SASCFC 152
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Lovell and The Honourable Justice Hinton)
22 November 2017
PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF WHOLE ACTION - GENERALLY
The primary relief sought by the appellant – the making of declarations as to the validity of the delegations made by the respondent on 15 July 2014, 2 and 18 December 2014, and 27 January 2015 – was refused by the Court in the exercise of its discretion. However, the appellant succeeded in his arguments that, with the exception of the delegations to Ms Eszenyi of 2 and 18 December 2014, the delegations as made were not compliant with the requirements of the Public Sector (Honesty and Accountability) Act 1995 (SA) or any authorisation given by the Attorney-General thereunder, where he had previously failed before the single Judge. Thus, the appellant was, in effect, successful to a significant degree.
Held (per Lovell and Hinton JJ):
1. The respondent should pay the appellant's costs of and occasioned by the appeal, the application for permission to appeal and the interlocutory application before the Judge at first instance, limited to his disbursements and out of pocket expenses.
Held (per Kourakis CJ dissenting):
1. There should be no order as to costs.
Public Sector (Honesty and Accountability) Act 1995 (SA); Supreme Court Act 1935 (SA), referred to.
Cachia v Hanes (1994) 179 CLR 403; Lyons v Legalese Pty Ltd & Anor (No 2) [2017] SASC 2, applied.
Guss v Veenhuizen (Taxation of Costs) (1976) 136 CLR 47; Australian Federation of Consumer Organisation Inc v Tobacco Institute of Australia (1991) 100 ALR 568, distinguished.

VISCARIELLO v LEGAL PROFESSION CONDUCT COMMISSIONER (NO 2)
[2017] SASCFC 152
Full Court: Kourakis CJ, Lovell and Hinton JJ.

KOURAKIS CJ: I would not make any costs order in favour of the appellant. The appellant’s out of pocket expenses are far outweighed by the legal costs incurred by the Commissioner in defending contentions on which the appellant was ultimately unsuccessful. The Commissioner’s concession is most probably an acceptance of the futility of an order in its favour because of the appellant’s impecuniosity.
LOVELL AND HINTON JJ:
By interlocutory application dated 14 August 2014 the appellant sought, amongst other things, declarations that delegations made by the respondent were unlawful. The interlocutory application related to an application for judicial review commenced in this Court. The relief sought and considered by a single Judge of this Court travelled beyond what may properly be considered adjectival to the substantive proceeding and extended to dealing with matters that could only be pursued in the substantive proceeding.
The appellant was unsuccessful before the single Judge. He instituted an appeal and, to the extent that he required permission to pursue his appeal, applied for such permission.
On 10 August 2017, by majority, this Court ordered:[1]
1.allow the application dated 10 August 2016 (FDN 38) for permission to file and serve the second statement of claim (as annexed to FDN 39);
2.on the basis that grounds 2, 3, 4, 5, 6, 7, 15, 16, 17 and 18 require permission to appeal, grant permission on grounds 6 and 7 but otherwise refuse the application for permission to appeal;
3.in relation to grounds 1, 6, 7, 8, 9, 10, 11, 12, 13 and 14, dismiss the appeal; and
4.grant permission to appeal on ground 19 (the application for permission to appeal against the costs order of 23 February 2016) and hear the parties further on that issue.
[1] Viscariello v Legal Profession Conduct Commissioner [2017] SASCFC 98.
The first order was made to reflect the fact that the interlocutory application and judgment appealed against had travelled beyond the grounds and relief sought in the substantive judicial review proceeding.
It is neither necessary to traverse the arguments advanced on the hearing of the appeal nor to consider the extent to which the appellant succeeded. Suffice to say that the primary relief sought – the making of declarations as to the validity of the delegations made by the respondent on 15 July 2014, 2 and 18 December 2014, and 27 January 2015 – was refused by the Court in the exercise of its discretion. That is, whilst the appellant succeeded in his arguments that, with the exception of the delegations to Ms Eszenyi of 2 and 18 December 2014, the delegations as made were not compliant with the requirements of the Public Sector (Honesty and Accountability) Act 1995 (SA) (the Accountability Act) or any authorisation given by the Attorney-General thereunder, where he had previously failed before the single Judge, he was nonetheless denied the relief he sought. Thus, the appellant was, in effect, successful to a significant degree.
On 10 August 2017, after handing down judgment, the appellant was given three weeks in which to file and serve written submissions in support of his appeal against the costs order made by the single Judge and any application for the costs of the appeal and application for permission to appeal made to this Court. The respondent was given two weeks thereafter to respond. The appellant complied with the Court’s direction. He seeks his costs of the appeal and of the application before the single Judge. The respondent did not comply with the Court’s direction. It was not the first time in this matter where time limits set by the Court came and went without response by the respondent even, at least, to indicate that he declined to make any submission. This Court should not need to remind the Commissioner, and any person to whom his power is delegated, that in the exercise of the executive power of the State in the conduct of litigation they are expected to act as the model litigant.
The Court made inquiries of the respondent and was advised that no order for costs was sought, but any order sought by the appellant was opposed. No submission was advanced in support of the latter position.
The appellant contends that he substantially succeeded at first instance and in his application before this Court despite this Court declining to award the relief sought. Acknowledging that he was not wholly successful in the action, the appellant contends that he is entitled to an award of costs on a party/party basis, but that the award should be reduced by 25 per cent.
The appellant adds that an award of costs in his favour is in the public interest as he has performed a public service by bringing and defending the proceedings. The basis of this submission is that it is in the public interest that the Commissioner’s compliance, or otherwise, with the Accountability Act be revealed. He submits that recent amendments to the Legal Practitioners Act 1981 (SA) inserting of s 77(4) arose as a direct consequence of his arguments about the proper application of s.17 of the Accountability Act. In support of that submission, he relies on the authority of Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Ltd,[2] a test case on whether passive smoking was a hazard to the health of non-smokers, in which costs were awarded to the applicant on an indemnity basis.
[2] (1991) 100 ALR 568 at 572 (Morling J).
The appellant represented himself before the single Judge and in this Court. The appellant was once admitted as a legal practitioner of this Court. He is no longer and has not been since 21 May 2013.[3] He is, therefore, neither a solicitor nor a barrister. He is not entitled to call himself a legal practitioner or to hold himself out as such. Consequently, for the purposes of this application for costs he enjoys the status of a litigant in person.
[3] [2013] SASCFC 37.
In Cachia v Hanes Mason CJ, Brennan, Deane, Dawson and McHugh JJ said:[4]
To use the Rules to compensate a litigant in person for time lost would cut across their clear intent. Costs, within the meaning of the Rules, are reimbursement for work done or expenses incurred by a practitioner or practitioner’s employee. Compensation for the loss of time of a litigant in person cannot be said to constitute costs within the meaning of the Rules.
This is hardly surprising. It has not been doubted since 1278, when the Statute of Gloucester introduced the notion of costs to the common law, that costs are awarded by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation. They were never intended to be comprehensive compensation for any loss suffered by a litigant. As Coke observed of the Statute of Gloucester, the costs which might be awarded to a litigant extended to the legal costs of the suit, “but not to the costs and expences of his travell and losse of time”.
(footnotes omitted.)
[4] (1994) 179 CLR 403 at 410-411.
Whilst those remarks were made in relation to Supreme Court Rules (1970) (NSW), they apply equally to the rules of this Court and to s 40(1) of the Supreme Court Act 1935 (SA).
In such circumstances the appellant’s application is confined to his disbursements and out of pocket expenses. Because the appellant is not a legal practitioner the “anomalous exception” referred to in Cachia v Hanes[5] and Guss v Veenhuiszen [No 2][6] does not apply.
[5] (1994) 179 CLR 403 at 411-413 (Mason CJ, Brennan, Deane, Dawson and McHugh JJ).
[6] (1976) 136 CLR 47.
Section 40(1) of the Supreme Court Act 1935 (SA) arms this Court with a broad power to award costs. It provides:
40—Power of court with regard to costs
(1)Subject to the express provisions of this Act, and to the rules of court, and to the express provisions of any other Act whenever passed, the costs of and incidental to all proceedings in the court, including the administration of estates and trusts, shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and to what extent such costs are to be paid.
The breadth of the power is to be preserved so as to maximise the ability to do justice in every case.[7]
[7] Lyons v Legalese Pty Ltd & Others [No 2] [2017] SASC 2 at [5]–[8] and the authorities there cited.
As a general rule, costs follow the event, hence the outcome of a proceeding is the primary consideration in the exercise of the discretion as it identifies who is to be compensated.[8] Bearing in mind the limitation on the power to compensate the appellant by an award of costs, justice requires that because the appellant substantially succeeded on appeal he should have his costs of the appeal, the application for permission to appeal, and of the interlocutory application, those costs being limited to his disbursements and out of pocket expenses. We appreciate that the Judge below considered that a substantial part of the submissions advanced before him focused upon the application of the Public Corporations Act 1993 (SA) and were without merit. Nonetheless, from very early on the appellant contended that strict compliance with the Accountability Act was required.
[8] Oshlack v Richmond River Council (1998) 193 CLR 72 at [66] (McHugh J).
Accordingly, we would order that the respondent pay the appellant’s costs of and occasioned by the appeal, the application for permission to appeal, and the interlocutory application before the Judge at first instance, limited to his disbursements and out of pocket expenses.
Before leaving this matter we make plain that the order we would make should not in any way be seen as acceptance of the submission that this litigation may be considered “public interest litigation”. In Lyons v Legalese Pty Ltd & Anor (No 2), Hinton J considered the circumstances in which the public interest can be weighed as a discretionary consideration in awarding costs. He said:[9]
The second concerns what has been characterised as public interest litigation. Use of that label is fraught with danger. The concept includes litigation that concerns the power of the state to affect rights, entitlements or interests, the outcome of which has ramifications extending beyond the parties and to a broad sector of the public. In such circumstances the importance of the resolution of the issue in the interests of the public more broadly may be a factor taken into account in determining whether to burden the unsuccessful party with the entirety of a costs order, or at all. In an age where public authorities are no strangers to litigation, the mere fact that the exercise of the power of the state is under consideration, or an agency or instrument of the state is involved, will not suffice to warrant characterising a matter as public interest litigation for costs purposes.
The cases also suggest that public interest litigation includes cases that resolve a significant number of other disputes concerning the exercise of the power of the state or the application of a legislative regime, that are pending or anticipated, or, concern a public function the performance of which, in the public interest, should not be influenced by the pressure of costs implications.
A final example may be described as test cases; those that involve a question of law of general public importance that has not been resolved and will be of far reaching effect.
The characterisation of the litigation as being in the public interest will not automatically insulate a party from an award of costs against them. Much will depend upon the context in which the litigation arises.
(footnotes omitted.)
[9] [2017] SASC 2 at [16]–[19].
These proceedings, while raising issues relevant to the proper exercise of statutory executive power, do not resolve questions of law so far reaching and of such importance that the case can be considered to be a test case as in Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Ltd[10] or public interest litigation more generally.
[10] (1991) 100 ALR 568 at 572 (Morling J).