Viscariello v Legal Profession Conduct Commissioner

The Full Court of the Supreme Court of South Australia considered an appeal by Mr Viscariello against a decision of a primary judge who had dismissed his application for judicial review and an order of mandamus compelling the Legal Profession Conduct Commissioner to investigate his complaints. Mr Viscariello also appealed an adverse costs order made against him. The primary judge had found that the Commissioner had not failed to discharge his statutory duty to investigate, and that certain delegations made by the Commissioner were not invalid.

The legal issues before the Full Court included whether the primary judge erred in dismissing the application for judicial review and refusing mandamus, whether the primary judge erred in finding the delegations valid, whether the primary judge failed to afford procedural fairness, and whether the primary judge erred in making an adverse costs order. A significant aspect of the appeal involved the Commissioner's application to adduce fresh evidence, namely that all of Mr Viscariello's complaints had been finally determined by a delegate of the Commissioner after the primary judge's decision.

The Court, allowing the Commissioner's application to adduce fresh evidence, reasoned that the subsequent finalisation of all complaints rendered the appeal futile. It held that the primary judge did not err in dismissing the application for judicial review or in concluding that any failure by the Board to investigate became the responsibility of the Commissioner. Furthermore, the Court found that the application for judicial review was bound to fail on discretionary grounds of futility due to the subsequent determinations. The Court also determined that the primary judge did not err in making an adverse costs order, finding it fell within his discretion.

Consequently, the appeal was dismissed. The Court upheld the primary judge's decision, finding no grounds for the issue of mandamus or declarations of invalidity, and affirmed the costs order made against Mr Viscariello.