Viscariello v Livesey

Case [2013] SASC 99

SUPREME COURT OF SOUTH AUSTRALIA

(Miscellaneous Appeal: Civil)

VISCARIELLO v LIVESEY & ANOR

[2013] SASC 99

Judgment of The Honourable Justice White

27 June 2013

PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT - OTHER MATTERS

PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA - PROCEEDINGS IN TRIBUNALS

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FRESH EVIDENCE

The appellant laid charges of unprofessional conduct against the respondents in the Legal Practitioners Disciplinary Tribunal - he claimed standing to do so under s 82(2)(d) of the Legal Practitioners Act 1981 (SA), as "a person claiming to be aggrieved by reason of the alleged unprofessional or unsatisfactory conduct" of the respondents - the alleged conduct was said to have occurred in the respondents' representation of a Ms George in litigation involving the appellant's former partner Ms Hamilton-Smith, in relation to which Mr Macks, the liquidator of two companies of which the appellant is a director and creditor, had provided a costs indemnity.

The appellant contended that he was a person really and directly affected by the alleged conduct on three alternative bases - first, that Mr Macks had improperly expended funds of the two companies in liquidation, and thereby diminished the funds available to him as a creditor - the appellant contended that, but for the respondents' alleged conduct, he would have been able, by action, to have restrained Mr Macks from expending the companies' funds in this way - secondly, that in acting as solicitor for Ms Hamilton-Smith on a pro bono basis in the litigation involving Ms George, he had incurred costs which, but for the alleged conduct of the respondents, would not have been incurred - thirdly, that he had standing under subs (2)(d) as a legal practitioner and officer of this Court.

The Tribunal held that s 82(2)(d) required a complainant to be "really and directly" affected by the alleged conduct - the Tribunal found that the appellant's grievances were too remote, did not arise "by reason of" the respondents' alleged conduct, and that the appellant lacked standing - it dismissed the charges - he appeals against those dismissals.

Held (dismissing the appeal):

(1)  The Tribunal's construction of the expression "a person claiming to be aggrieved by reason of the alleged unprofessional or unsatisfactory conduct" was correct (at [64]).

(2)  The evidence did not establish a real possibility of actual detriment suffered by the appellant in his capacity as a creditor, nor that the claimed detriment resulted from the alleged conduct of the respondents (at [76], [79]).

(3)  Any "loss" suffered by the appellant by acting without charge for Ms Hamilton-Smith could not be attributed to the alleged conduct of the respondents (at [97]-[98]).

(4) Section 82(2)(d) should not be understood as indicating that all practitioners, by virtue of their status as legal practitioners and their responsibility to uphold appropriate standards of conduct, can be regarded as persons…

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Viscariello v Livesey [2013] SASC 99
Case
[2013] SASC 99
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CaseChat Overview and Summary

The appellant, Mr Viscariello, appealed against the dismissal of charges of professional misconduct he had laid against two legal practitioners, Mr Livesey QC and Ms Flaherty, before the Legal Practitioners Disciplinary Tribunal. The charges arose from the respondents' representation of Ms George in litigation involving Ms Hamilton-Smith, with whom Mr Viscariello was formerly in a domestic relationship. Mr Viscariello argued that he had standing to bring the charges under s 82(2)(d) of the Legal Practitioners Act 1981 (SA), as he was a person aggrieved by the alleged conduct of the respondents. The Tribunal found that Mr Viscariello did not have standing to bring the charges as he was not "really and directly" affected by the alleged conduct, and dismissed the charges. The key legal issues in the appeal were whether the Tribunal's construction of the term "a person claiming to be aggrieved by reason of the alleged unprofessional or unsatisfactory conduct" was correct, and whether the evidence established that Mr Viscariello had suffered actual detriment as a result of the alleged conduct of the respondents. The Court found that the Tribunal's construction of the term was correct, and that the evidence did not establish that Mr Viscariello had suffered actual detriment as a result of the alleged conduct of the respondents. The Court also found that any loss suffered by Mr Viscariello by acting without charge for Ms Hamilton-Smith could not be attributed to the alleged conduct of the respondents. The Court dismissed the appeal and affirmed the decision of the Tribunal. The Court also refused the appellant's applications to amend the charges laid before the Tribunal, to receive further evidence, and to amend the notice of appeal.

Orders

Orders of the court

Held (dismissing the appeal):

(1) The Tribunal's construction of the expression "a person claiming to be aggrieved by reason of the alleged unprofessional or unsatisfactory conduct" was correct (at [64]).

(2) The evidence did not establish a real possibility of actual detriment suffered by the appellant in his capacity as a creditor, nor that the claimed detriment resulted from the alleged conduct of the respondents (at [76], [79]).

(3) Any "loss" suffered by the appellant by acting without charge for Ms Hamilton-Smith could not be attributed to the alleged conduct of the respondents (at [97]-[98]).

(4) Section 82(2)(d) should not be understood as indicating that all practitioners, by virtue of their status as legal practitioners and their responsibility to uphold appropriate standards of conduct, can be regarded as persons really and directly affected by the unprofessional conduct of another (at [102]).

(5) The applications of the appellant for this Court to amend the charges laid before the Tribunal, to receive further evidence and, with one exception, to amend the notice of appeal are refused (at [122], [144], [152]).

Background

Background to the litigation

This appeal raises the correctness of that decision.Background At the times of the hearing before the Tribunal and the hearing of this appeal the appellant was himself a legal practitioner.[1] He represented himself in the proceedings before the Tribunal and on this appeal. The appellant was (and remains) a director of two companies: Bernsteen Pty Ltd (in liquidation) (Bernsteen) and Newmore Pty Ltd (in liquidation) (Newmore). Palm Hills Pty Ltd as trustee for the John Viscariello Family Trust and the appellant are the sole shareholders in those companies. Bernsteen and Newmore were involved in the sale of manchester.[1] On 21 May 2013 the Full Court ordered that the appellant’s name be removed from the roll of legal practitioners (Legal Practitioners Conduct Board v Viscariello [2013] SASCFC 37), but that order is of no consequence in the present appeal. On 5 December 2001, an administrator was appointed to each of Bernsteen and Newmore and a short time later, as a result of a creditor’s resolution on 21 December 2001, they went into liquidation. Mr Peter Macks was appointed the Liquidator. In the course of the liquidations, Mr Macks provided support, in a manner which I will outline later, to a Ms George (now Ms Sachse) in relation to certain litigation involving a Ms Hamilton‑Smith. The latter is the former domestic partner of the appellant. The respondents acted on behalf of Ms George in the litigation involving Ms Hamilton‑Smith. The conduct which was the subject of the appellant’s charges in the Tribunal is said to have occurred in their representation of Ms George. On 7 June 2012, the appellant laid two sets of charges in the Tribunal: one relating to the alleged conduct of the first respondent, Mr Livesey QC; and one relating to the alleged conduct of the second respondent, Ms Flaherty. Each set of charges alleged unprofessional conduct.[2] The two sets of charges were not identical, but had much in common. In essence they were charges that the respondents misled or attempted to mislead courts by making statements, or allowing evidence to be adduced, which they knew to be false or incomplete. The conduct charged against Ms Flaherty is said to have occurred in the performance of her role as instructing solicitor, and that charged against Mr Livesey, in his role as counsel. In the summary which follows, it is convenient to treat the charges as comprising four pairs of charges.[2] “Unprofessional conduct” is defined in s 5(1) of the LPA to mean, in relation to a legal practitioner:(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.The First Charges The conduct relied upon for the first and second charges in relation to each respondent is said to have occurred in bankruptcy proceedings in the Federal Magistrates Court (the FMC). Ms George had served a bankruptcy notice on Ms Hamilton‑Smith. The latter applied to have the bankruptcy notice set aside, but her application was dismissed by the Registrar, Ms Christie, on 22 September 2005.

Evidence

Evidence Before The Court

For these reasons I refused the appellant’s application for permission to amend the charges which he laid before the Tribunal.Reception of Fresh Evidence I referred earlier to the substantial affidavit material which the appellant filed in the Tribunal. The appellant informed the Tribunal at the hearing that he relied on the whole of that material in relation to the challenge to his standing, even though several of the affidavits had been prepared in relation to the respondents’ interlocutory applications generally. The appellant’s appeal to this Court was commenced on 31 August 2012 and listed for hearing on 9 November 2012. The parties were notified of that listing on 17 October 2012. On 18 October, the hearing was relisted for 15 November 2012 in order to accommodate the convenience of counsel. On 6 November 2012, the Court received notification for the first time that the appellant intended to file an affidavit of some 1200 pages in length. The appellant informed the Court that he intended to file an application for permission to adduce further evidence, and that the bulk of the foreshadowed 1200 page affidavit would comprise that evidence. It was then obvious that the foreshadowed interlocutory application and further evidence had the potential to dislocate the arrangements made for the hearing of the appeal. The Court thereupon, on its own motion, held a directions hearing in relation to the appeal on 9 November 2012. At the directions hearing, I ordered that, instead of filing the foreshadowed affidavit, the appellant was to file and serve that same day an application for permission to adduce the further evidence, limited to four pages, and, as part of the application, to provide particulars sufficient to indicate the further evidence proposed to be adduced, and its purport and effect. In addition, I directed that the appellant file and serve a short affidavit in which he deposed to the matters relied upon to establish the circumstances in which the Court should, on the appeal, receive the further evidence. My intention was that the appellant should thereby provide to both the Court and the respondents sufficient information so that the application to adduce further evidence could be determined without the Court or the parties having to consider, as part of the application itself, all the proposed further evidence. I informed the parties that I would deal with the foreshadowed application to adduce further evidence at the commencement of the hearing of the appeal on 15 November. The appellant did not comply with these orders in the manner intended. Instead, his interlocutory application said only that he sought permission to adduce the further evidence referred to in the accompanying affidavit, and did not provide any particulars. The affidavit identified five categories but with only limited particularity of the kind contemplated by the orders of 9 November. Although the appellant had not mentioned at the directions hearing any intention to apply to amend the charges which had been considered by the Tribunal, his interlocutory application did contain such an application. The appellant filed a second affidavit on 12 November 2012 exhibiting the form of the proposed amended charges against each respondent. As will be seen, it was apparent that much of the supporting affidavits and the proposed further evidence were directed to the proposed amended charges.

Decision

Reasons for decision

WHITE J
As noted, the Tribunal’s jurisdiction is conditioned upon a charge having been laid “under this section” (subs (4)). This requires, amongst other things, that the charge be laid by a person or entity having standing to lay the charge, as specified in subs (2).The Tribunal Decision By applications filed on 17 August 2011, each respondent sought, amongst other things, dismissal of the respective charges on the basis that the appellant was not a person aggrieved by the unprofessional conduct he alleged, within the meaning of s 82(2)(d) of the LPA. Their applications were expressed slightly differently, but nothing turns on those differences for present purposes. The respondents’ applications were listed for 7 and 8 February 2012. At that hearing the parties agreed that the challenges to the appellant’s standing should be determined first, as these went to the Tribunal’s jurisdiction. The appellant relied at the hearing on affidavits sworn by him on 5 December 2011, 14 December 2011, 30 January 2012 and 6 February 2012. The affidavit of 5 December 2011 contained, in [265]-[273], a statement of the basis upon which he asserted that he had standing. For the purposes of the determination of the challenge to the Tribunal’s jurisdiction, and for those purposes only, counsel for Mr Livesey QC indicated that he did not dispute (subject to one qualification) the factual matters to which the appellant had deposed which were said to make him “a person claiming to be aggrieved” by the charged conduct.[3] For the same purposes, Ms Flaherty accepted, subject to one qualification, the allegations in the particulars to the charges concerning her.[4][3] Reasons at [15.1] referring to [265]-[275] of the appellant’s affidavit of 5.12.11.[4] Ibid at [15.2]. The issue as to the appellant’s standing arose from the circumstance that the appellant was not himself a party to any of the proceedings in the FMC, the Federal Court or this Court in which the charged conduct of the respondents had occurred. The appellant submitted that that was immaterial, contending that his mere assertion that he was aggrieved by the alleged conduct was sufficient to give him standing. After reviewing s 82 in its statutory context and a number of authorities, the Tribunal concluded that the expression “a person claiming to be aggrieved” in s 82(2)(d) had the same meaning as “person aggrieved”.[5] It went on to hold, on my understanding of its reasons, that that requires that the person have, considered objectively, an interest in “a real and direct” way in the subject matter of the inquiry. This requires in turn an examination on a case by case basis of the circumstances alleged, bearing in mind the subject, scope, purpose and objects of the LPA.[6] In addition, the Tribunal held that the appellant had to establish that he was aggrieved “by reason of” the alleged conduct of the practitioners,[7] that is, that it was their conduct, rather than that of anyone else, which gave rise to his grievance.[5] Ibid at [35], [64].[6] Ibid at [80].[7] Ibid at [102].

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

Full text does not contain this section.