Viscariello v Legal Profession Conduct Commissioner (No 2)

The Full Court of the Supreme Court of South Australia considered an appeal by Mr Viscariello against an order refusing his application for judicial review. The dispute concerned the costs of this appeal, with Mr Viscariello seeking an order that each party bear their own costs, while the respondent, the Legal Profession Conduct Commissioner, sought an order for his costs to be paid in a lump sum.

The primary legal issue before the Full Court was whether to depart from the general rule that costs follow the event, and specifically, whether to award costs on a party-party basis or as a lump sum. The court was required to determine if the conduct of the parties warranted an exception to the usual costs order and if there was a sufficient basis to grant the Commissioner's application for a lump sum costs award.

The Full Court, in dismissing Mr Viscariello's appeal, reasoned that there was no proper basis to depart from the general principle that costs should follow the event. While acknowledging that a successful party can be disentitled to costs if their conduct justifies it, and that courts may award costs against a party who has acted unreasonably, the court found that the Commissioner had not acted in a manner that left Mr Viscariello with no reasonable alternative but to commence proceedings. Furthermore, the court held that it was not open to make an unsubstantiated lump sum order for costs, as there was insufficient material to logically, fairly, and reasonably assess the quantum.

Consequently, the Full Court ordered that Mr Viscariello pay the respondent's costs of the appeal, to be agreed or taxed on a party-party basis. The respondent's application for costs assessed as a lump sum award was dismissed.