Viscariello v Legal Profession Conduct Commissioner (No 2) - [2016] SASC 22

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
VISCARIELLO v LEGAL PROFESSION CONDUCT COMMISSIONER (No 2)
[2016] SASC 22
Judgment of The Honourable Justice Parker
23 February 2016
PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT
The respondent sought costs following the handing down of judgment substantially dismissing an application for various forms of relief against the Legal Profession Conduct Commissioner. The applicant complained that delegations of investigative and determinative powers by the Commissioner to two legal practitioners were invalid. Except in one instance the delegations were found to be lawful and in any event the unlawful delegation remained valid.
Held: The applicant was to a limited extent vindicated and was ordered to pay 75% of the costs incurred by the Commissioner to be assessed on a party/party basis.
Legal Practitioners Act 1981 s 77; Public Sector (Honesty and Accountability) Act 1995 s 17(1)(c)(ii), referred to.
Viscariello v Legal Profession Conduct Commissioner [2015] SASC 132; Ritter v Godfrey [1920] 2 KB 47, discussed.
Zelino v Budai [2001] NSWSC 501, considered.

VISCARIELLO v LEGAL PROFESSION CONDUCT COMMISSIONER (No 2)
[2016] SASC 22
Civil:
PARKER J:

On 27 August 2015 I dismissed an application by Mr Viscariello for various forms of relief against the Legal Profession Conduct Commissioner (the Commissioner).[1] I granted permission for the parties to make written submissions on costs. Mr Viscariello filed a written submission on 14 September 2015 while submissions were filed on behalf of the Commissioner on 21 October 2015.
[1] [2015] SASC 132.
It is not necessary to refer in detail to the various matters dealt with in my judgment dated 27 August 2015. The essential points are that in December 2013 Mr Viscariello sought permission to proceed with an application for judicial review against the former Legal Practitioners Conduct Board (the Board). He sought orders in the nature of mandamus compelling the Board to investigate the conduct of certain legal practitioners and also an order compelling the Board to seek the consent of the Attorney-General to lay charges against the relevant practitioners outside the five year limitation period. On 16 April 2014 Nicholson J granted permission for Mr Viscariello to proceed with the judicial review application. On 1 July 2014, as a result of amendments to the Legal Practitioners Act 1981 (the LP Act), the Board was abolished and its functions were assumed by the Commissioner. The Commissioner was substituted as defendant to these proceedings.
On 13 August 2014 Mr Viscariello filed an interlocutory application in the judicial review proceedings in which he sought a series of declarations and orders and also a “referral to the Attorney-General”. He sought a declaration that all actions taken by the Board in the action for judicial review up to 30 June 2014 were unlawful and also a declaration that all such actions taken by the Commissioner after 1 July 2014 were also unlawful. He also sought a declaration that delegations made by the Commissioner under s 77 of the LP Act to Mr Timothy Bourne were unlawful. The purpose of one “referral to the Attorney-General” was that the Attorney-General appoint an acting Commissioner to carry out the investigation into the conduct of the relevant practitioners that was sought by Mr Viscariello. The other referral sought the appointment of an acting Commissioner to act in relation to the judicial review proceedings.
Mr Viscariello alleged that the actions of the Board and of the Commissioner were unlawful on multiple grounds. I found that with one exception their conduct had not been unlawful. The exception was my finding that the Commissioner had not complied with the duty under s 17(1)(c)(ii) of the Public Sector (Honesty and Accountability) Act 1995 (the PSHA Act) before he delegated certain of his powers and functions to Mr Bourne on 15 July 2014. Because of the Commissioner’s acknowledged conflict of interest he was required by that provision not to take action in relation to the complaint by Mr Viscariello except as authorised in writing by the Attorney-General (being the relevant Minister). The delegation was an action for the purposes of s 17(1)(c)(ii). While I found that the Commissioner had not fully complied with s 17(1)(c)(ii), that had not invalidated the delegation of his power to Mr Bourne.
I also found that the Court had no jurisdiction to make a referral to the Attorney-General requiring that he appoint an acting Commissioner for the purposes sought by Mr Viscariello.
The Commissioner has sought that Mr Viscariello be ordered to pay his costs on a party/party basis. He has made the point that each of the delegations challenged by Mr Viscariello was found by the Court to be valid. There was no reason why costs ought not to follow the event in the ordinary way. The Commissioner has also noted that the delegation made on 2 December 2014, which had been authorised in writing by the Attorney-General, was effectively in the same terms as that made on 15 July 2014.
Mr Viscariello also seeks an order that his costs should be paid on a party/party basis. He has submitted that he substantially succeeded in his application. The basis for that submission is my finding that the delegation made on 15 July 2014 was not in accordance with s 17 of the PSHA Act. He has also submitted that he had never contended that the delegations made by the Commissioner to Mr Bourne were invalid. He had merely submitted that they were unlawful.
Mr Viscariello has also submitted that he brought and maintained the present action, including the interlocutory proceedings, in the public interest and in the interests of justice. He has submitted that, but for his action, the failure of the Commissioner to comply with the PSHA Act would not have been revealed.
Mr Viscariello has relied upon the judgment of Palmer J in Zelino v Budai.[2] Palmer J adopted with approval the observation made by Atkin LJ (as his Lordship then was) in Ritter v Godfrey that a wholly successful defendant may not be entitled to costs if, amongst other reasons, there is evidence that the defendant had done some wrongful act in the course of the transaction of which the plaintiff complains. [3] Two of the plaintiffs in Zelino had sued their accountant for negligence and breach of a contractual duty of care. The defendant established that the contract sued upon gave rise to an offence against taxation legislation. Palmer J followed Atkin LJ in Ritter v Godfrey and held that it would be contrary to public policy to permit the defendant to cover his costs in relation to that issue. The costs order made in favour of the defendant was adjusted accordingly.
[2] [2001] NSWSC 501.
[3] [1920] 2 KB 47 at 60.
Mr Viscariello also complained that the Commissioner had breached his obligations as a model litigant by failing to disclose immediately documents relating to the delegation made on 15 July 2014. The delay is said by Mr Viscariello to have caused him additional expense. He has not particularised that expense. In any event the documents were ultimately provided and the issue of disclosure was not pursued in the interlocutory application.
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 PSHA Act but also that the delegations were invalid and thus of no effect.
I also note that a substantial part of the submissions advanced by Mr Viscariello was based upon his contention that there had been a failure by the Board and by the Commissioner to comply with the conflict of interest provisions in the Public Corporations Act 1993. I found that this Act was not relevant to the Board and the Commissioner. It is apparent from paragraphs 34 and 36 of my primary judgment that if Mr Viscariello had properly researched the legislation he would not have pursued those arguments.
Quite separately from my finding that the failure to comply fully with s 17 of the PSHA Act did not invalidate the delegation, I consider that the mistake made by the Commissioner was not serious or in any way improper. He had fully disclosed to the Attorney-General the fact that he considered that there was a conflict of interest in relation to the investigation of the allegations made by Mr Viscariello because of his past role with the firm of Minter Ellison. There was no attempt on the part of the Commissioner to mislead the Attorney-General or not to keep him fully informed about that issue. The error made by the Commissioner was simply that he did not wait until he had received the written approval of the Attorney-General before making the delegation that he had already foreshadowed in writing to the Attorney-General.
While I have found that none of the delegations were invalid, and while many of the contentions advanced by Mr Viscariello were significantly misplaced, to a limited extent Mr Viscariello’s position has been vindicated.
For that reason I consider it appropriate to order that Mr Viscariello pay 75% of the costs incurred by the Commissioner of and incidental to the interlocutory application dated 13 August 2014 to be assessed on a party/party basis