SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application)
VISCARIELLO v LIVESEY & ANOR
[2014] SASCFC 40
Judgment of The Full Court
(The Honourable Justice Peek, The Honourable Justice Bampton and The Honourable Justice Parker)
14 April 2014
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - SECURITY FOR COSTS
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - PARTICULAR CASES - OTHER MATTERS - COSTS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - GENERAL PRINCIPLES - FUNCTIONS OF APPELLATE COURT - SUBSTANTIVE RIGHT OR MATTER OF PROCEDURE - MATTERS OF PROCEDURE - INTERLOCUTORY ORDERS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - STRONG REASONS FOR INTERFERENCE
Application for permission to appeal against interlocutory order.
Mr Viscariello applied to the Full Court for permission to appeal against an interlocutory order made by Kelly J that the further prosecution of an appeal by Mr Viscariello to the Full Court against a decision of White J dismissing his appeal against a decision of the Legal Practitioners Disciplinary Tribunal be stayed until he has paid into Court the sum of $40,000.00 to secure the respondents’ costs. White J had upheld the Tribunal’s decision that Mr Viscariello had no standing to personally lay unprofessional conduct charges against the respondents under the Legal Practitioners Act 1981.
Held (Peek J; Bampton J and Parker J agreeing, refusing permission to appeal):
1. It was not genuinely arguable that it was not open to the Judge to be satisfied that the combined force of the matters of impecuniosity, prospects of success and the fact that this is a second appeal constituted “special circumstances” and enlivened the jurisdiction to make a security for costs order pursuant to Rule 295(1)(g), Supreme Court Rules 2006. [19]-[22], [24], [26]-[27], [32]
2. It was not genuinely arguable that it was not open to the Judge to exercise her discretion to make a security for costs order. Mr Viscariello appeared in person, and refused to comment on either his net worth or ability to satisfy a costs order in the event that an appeal against White J were unsuccessful. Consistent with that position, he did not submit that a security for costs order would stultify that appeal. The Judge’s finding of impecuniosity did not equate to good evidence of stultification. [35], [41]-[47]
3. It was not genuinely arguable that it was not open to the Judge to fix a single sum of $40,000.00 to secure costs for both respondents in all of the circumstances. [49]-[54]
Legal Practitioners Act 1981 (SA) s 82(2)(d); Supreme Court Rules 2006 r 295(1)(g), referred to.
Archer v Woodhead Australia Pty Ltd [1995] SASC 5020; Citicorp v Cirillo (2003) 228 LSJS 132; Foxgold Pty Ltd v…
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- Case
- [2014] SASCFC 40
- Decision Date
CaseChat Overview and Summary
The legal issues before the Full Court were whether Kelly J erred in her assessment of the risk of Mr Viscariello being impecunious and unable to pay the costs of the appeal, and whether her Honour was justified in ordering security for costs on that basis. The court also considered whether Mr Viscariello's prospects of success on the substantive appeal were sufficiently poor to warrant such an order.
The Full Court found that Mr Viscariello's own statements regarding the substantial costs of his numerous ongoing litigations, including an estimate exceeding $2.5 million for one matter alone, raised a real risk of impecuniosity. The court noted that Mr Viscariello declined to provide information about his net worth or ability to satisfy a costs order, which strengthened the inference of a high risk of impecuniosity. The court held that Kelly J was justified in drawing this inference and that her Honour's conclusion that Mr Viscariello was impecunious and unable to pay the respondents' costs was not demonstrably wrong. The court also considered Mr Viscariello's submission that his appeal was too complex to assess prospects of success at that stage.
The Full Court dismissed the appeal, upholding the order made by Kelly J.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: PEEK J, BAMPTON J, PARKER J
All of the above was to be viewed in conjunction with Mr Viscariello’s own statements that he had huge expenses in relation to numerous sets of ongoing litigation, including that of Viscariello v Macks No 165 of 2006 in relation to which, as already emphasised, his “estimation of the cost of the herein action is well in excess of $2.5 million. This cost is in addition to the cost of all of the other proceedings referred to above.”[29] [29] 24th Affidavit of John Viscariello sworn 14 May 2013 at [10].Consideration of effect of statements and costs orders Despite being fully aware of the cumulative effect of all of the above material, the applicant chose to take the position that he would decline to comment on the matter of his net worth and the question of whether he would be able to satisfy an order for costs, were he to be unsuccessful in the White J/Full Court appeal. He simply maintained the position that the material before Kelly J did not justify an inference of a real risk of impecuniosity. I find that it is not genuinely arguable that the material that was before Kelly J did not raise the inference of a real risk of impecuniosity. I further find that, the inference of a real risk of impecuniosity having been raised, Kelly J was clearly justified in taking the view that the attitude of the applicant as to giving no information as to his financial position made it all the more safe to draw the inference against the applicant of a “high risk” of impecuniosity. Thus her Honour concluded:[30] Based on these facts, I am concerned that there is a high risk that the appellant will be unable to pay costs in this matter. In my view, this is a significant matter which bears on the existence of special circumstances. The material pointed to by the respondent does raise the inference of impecuniosity and there is nothing in the response of the appellant to date to refute the inference which arises. The appellant has chosen not to provide any material or any evidence to contradict the inferences which arise on his own sworn evidence and submissions made on his instructions. He has had ample time to do so and has chosen not to. In my view, the appellant’s financial position is something peculiarly within his own knowledge and he could have, if he so desired, refuted the inference that the respondents seek this Court to draw. For these reasons I conclude on the whole of the information before me that the appellant is impecunious and will be unable to pay either respondents’ costs of the appeal.[30] Viscariello v Livesey & Anor [2013] SASC 198, [49]. I find that is not genuinely arguable that her Honour erred in either her approach to, or her conclusion in relation to, the matter of risk of impecuniosity. Prospects of success on appeal As to the second of the three cumulative matters (prospects of success), the respondents submitted that Mr Viscariello’s prospects of success are very limited. Mr Viscariello, on the other hand, submitted that the White J/Full Court appeal is so complex that no assessment of prospects of success could be made at such a preliminary stage.