Viscariello v Livesey & Anor
[2014] SASCFC 40
•14 April 2014
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 Paterson (2006) 245 LSJS 177; Dagenham Nominees Pty Ltd (t/as Banwell Marine Service) v Shanks (2011) 110 SASR 577; Morgan v WorkCover Corporation [2013] SASC 47; McVicar v S & J White Pty Ltd (t/as Arab Steed Hotel) (2006) 245 LSJS 177; Morgan v WorkCover Corporation [2012] SASC 190; Sands v State of South Australia [2013] SASC 105; Ramstrom v Baldino [2014] SASC 29; Consolidated Gold Mining Areas NL & Ors v Enterprise Gold Mines NL (1992) 57 SASR 584; Warren Mitchell Pty Ltd v Australian Maritime Officers' Union & Ors (1993) 12 ACSR 1; Friends of Hinchinbrook Society Inc v Minister for Environment & Ors (1996) 45 ALD 532; Ilat Nominees Pty Ltd v Murragong Nominees Pty Ltd (1980) 48 FLR 385; Maritime Services Board of New South Wales & Federal Airports Corporations v Citizens Airport Environment Association Inc (Third Runway Case) (1992) 83 LGERA 107; Classic Ceramic Importers Pty Ltd v Ceramica Antiga SA (1994) 13 ACSR 263; Smail v Burton; Re Insurance Associates Pty Ltd (in liq) [1975] VR 776, discussed.
Legal Practitioners Disciplinary Tribunal (Full Bench) Action No 9 of 2011; Legal Practitioners Conduct Board v Viscariello [2013] SASCFC 37; Viscariello v Livesey & Anor [2013] SASC 99; Viscariello v Legal Practitioners Conduct Board (No 2) [2013] SASCFC 27; Viscariello v Livesey & Anor [2013] SASC 198; House v The King (1936) 55 CLR 499; Norbis v Norbis (1985-1986) 161 CLR 513; Mallett v Mallett (1984) 156 CLR 605; Dinsdale v The Queen (2000) 202 CLR 321; John Viscariello v Legal Practitioners Conduct Board [2013] HCASL 188 (3 December 2013); Viscariello v Legal Practitioners Conduct Board [2013] HCATrans 149 (17 June 2013), considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"special circumstances", "public interest"
VISCARIELLO v LIVESEY & ANOR
[2014] SASCFC 40Full Court: Peek, Bampton and Parker JJ
PEEK J. Application for permission to appeal against interlocutory order.
Mr Viscariello applies for permission to appeal to the Full Court against an interlocutory order made by Kelly J that the further prosecution of an appeal by Mr Viscariello to the Full Court be stayed until he has paid into Court the sum of $40,000.00 to secure for the respondents’ costs of that appeal.
Introduction
The subject of the order made by Kelly J[1] is an appeal to the Full Court by Mr Viscariello (as of right) against a judgment of White J[2] (the White J/Full Court appeal). White J dismissed an appeal by Mr Viscariello against the decision of the Legal Practitioners Disciplinary Tribunal that, on a correct construction of s 82(2)(d) of the Legal Practitioners Act 1981, Mr Viscariello had no standing to personally lay charges of unprofessional conduct before the Tribunal against the respondents (the decision of the Tribunal).[3]
[1] Viscariello v Livesey & Anor [2013] SASC 198.
[2] Viscariello v Livesey & Anor [2013] SASC 99.
[3] Legal Practitioners Disciplinary Tribunal (Full Bench) Action No 9 of 2011.
Partial chronology of presently relevant events and litigation
I set out a partial chronology of some events involving Mr Viscariello relevant to the present application.
·On 14 August 2012, the decision of the Tribunal was delivered. Mr Viscariello appealed (as of right) against the decision of the Tribunal.
·On 20 May 2013, the Chief Justice heard an application by Mr Viscariello for an order restraining the firm of Iles Selley (Iles Selley) from enforcing an allocatur for payment by Mr Viscariello of the amount of $9,305.03, being for its taxed costs on a solicitor-client basis in relation to the dismissal of an application by Mr Viscariello for non-party disclosure. At that hearing Mr Viscariello made statements relevant to the matter of risk of impecuniosity which are referred to below.
·On 21 May 2013, the Full Court ordered that Mr Viscariello’s name be struck off the roll of practitioners,[4] that order being stayed for 28 days to enable an application to the High Court for a stay pending the hearing of an application to the High Court for special leave to appeal against the relevant judgments of the Full Court.
[4] Legal Practitioners Conduct Board v Viscariello [2013] SASCFC 37.
·On 17 June 2013, Mr Kendall QC, senior counsel for Mr Viscariello, made submissions to Hayne J on an application seeking a stay of the strike off order until Mr Viscariello's application for special leave to appeal against that order could be heard by the High Court.[5] Mr Kendall made a number of submissions relevant to the matter of risk of impecuniosity which are referred to below. (Hayne J refused Mr Viscariello’s application.)
[5] Viscariello v Legal Practitioners Conduct Board [2013] HCATrans 149.
·On 27 June 2013, White J delivered his judgment dismissing the appeal against the decision of the Tribunal.[6]
[6] Viscariello v Livesey & Anor [2013] SASC 99.
·On 18 July 2013, Mr Viscariello filed a Notice of Appeal to the Full Court (as of right) against the judgment of White J thus commencing the White J/Full Court appeal.
·On 25 October 2013, the first respondent herein filed an interlocutory application seeking a number of orders in relation to the White J/Full Court appeal. The second of the orders sought was that “the Appellant be ordered to provide security for costs for its appeal in the amount of $27,720.00 pursuant to Rule 295(1)(g), Supreme Court Rules 2006”.
·On 12 November 2013, the second respondent herein also filed an interlocutory application seeking similar orders. The second of the orders sought was that “the Appellant be ordered to provide security for costs for the appeal in the amount of $20,760.00 pursuant to Rule 295(1)(g), Supreme Court Rules 2006”.
·On 22 November 2013, the interlocutory applications of the respondents came on for hearing before Kelly J. There was some confusion as to precisely which applications were set down for hearing that day and Mr Viscariello asserted that he was insufficiently prepared to proceed. The hearing of the applications was adjourned and the date for resumption was later fixed as 3 December 2013.
·On 29 November 2013, Mr Viscariello filed an interlocutory application to be heard before Kelly J on 3 December 2013 (concurrently with the resumed hearing of the respondents’ applications) seeking various orders including a sixth order that Kelly J set down the issue of the amount of the security for a separate argument should her Honour be minded to order security for costs. (This is relevant to proposed ground 3 of appeal discussed below).
·On 3 December 2013, the High Court[7] dismissed the applications for special leave to appeal by Mr Viscariello in the matters of Viscariello v Legal Practitioners Conduct Board A16/2013[8] and Viscariello v Legal Practitioners Conduct Board A19/2013[9] on the papers without oral argument.
·On 3 December 2013, the interlocutory applications of the respondents and the interlocutory application of Mr Viscariello filed on 29 November 2013 came on for hearing before Kelly J. At the conclusion of the hearing her Honour reserved judgment.
·On 19 December 2013, Kelly J delivered the subject judgment and made the subject orders against which permission to appeal is presently sought.
·On 8 January 2014, Mr Viscariello filed a Notice to Appeal to the Full Court of the Supreme Court against the judgment and orders of Kelly J. The application later came before the Full Court (Sulan, Bampton and Parker JJ) to be decided on the papers. Sulan J (Bampton and Parker JJ in absentia) ordered that a directions hearing be held.
·On 26 February 2014 an inter partes directions hearing was held before Sulan J sitting alone. Mr Viscariello objected to his Honour hearing any matter involving him on the ground that there was an appearance of bias since his Honour had previously been a member of the Court that heard other litigation in which adverse findings against Mr Viscariello had been made.[10] Sulan J indicated to the parties that the application would be referred into Court for a hearing inter partes and that his Honour would not sit. Copies of the summary of argument on application to the Full Court for permission to appeal of Mr Viscariello (of 12 pages) previously filed with the Court on 23 January 2014 were supplied to the respondents.
·On 3 March 2014, the parties were notified by the Court that the Coram for the permission to appeal hearing would be Peek, Bampton and Parker JJ, and that arguments would be held on the afternoon of Wednesday 12 March 2014.
·On 6 March 2014, I held a directions hearing and ordered that the respondents file and serve their outline of arguments by 4pm on Friday 7 March 2014. I also gave Mr Viscariello the opportunity (but did not require him) to file and serve a reply limited to three pages dealing with the respondents’ outlines of argument by noon on Tuesday 11 March 2014.
[7] Bell and Gageler JJ [2013] HCASL 188.
[8] See Viscariello v Legal Practitioners Conduct Board (No 2) [2013] SASCFC 27.
[9] See Legal Practitioners Conduct Board v Viscariello [2013] SASCFC 37.
[10] See Legal Practitioners Conduct Board v Viscariello [2013] SASCFC 37.
The course of the hearing of the present application on 12 March 2014
At the commencement of the hearing before this Court on 12 March 2014, Mr Viscariello stated that he had decided not to file a reply of the type referred to at the directions hearing on 6 March 2014 because he could not adequately deal with the respondents’ outline of arguments within the three pages allocated. He stated that he had instead prepared a new (different) document of 14 pages upon which he wished to rely (together with his original summary of argument). Mr Viscariello had not furnished this new document to either the Court or the respondents prior to the hearing. The Court adjourned for 10 minutes for the Court and counsel for the respondents to peruse the document. Upon resumption, the Court indicated that it would receive the document with leave granted to counsel for each of the respondents to file and serve a document in response within seven days. The Court then proceeded to hear the oral submissions of the parties and reserved judgment.
PROPOSED GROUND ONE OF APPEAL: JURISDICTION TO MAKE SECURITY FOR COSTS ORDER
Proposed ground 1 of appeal is as follows:
1.Her Honour erred in law and in fact finding in that the jurisdiction in which an order for security for costs could be made under Rule 295(1)(g) of the Supreme Court Rules had been enlivened in that Her Honour:
1.1 erred in failing to have any or proper regard to the delay in the Respondents’ bringing of their Applications;
1.2 erred in failing to have any or proper regard to the fact that the Respondents had not deposed to suffering from any prejudice;
1.3erred in failing to have any or proper regard to the fact that:
1.3.1there were no costs orders (referred to by the Respondents see para 40 of the Judgment) made against the Appellant which were due and payable and outstanding;
1.3.2the costs orders (referred to by the Respondents see para 40 of the Judgment) were the subject of a challenge by the Appellant;
1.3.3there were no other costs orders (referred to by the Respondents) against the Appellant which were due, payable and outstanding;
1.4 erred in failing to have any or proper regard to the fact that the Appellant is a natural person and resident in this State;
1.5 erred in failing to have any or proper regard to the fact that the Respondents had the burden of proving that the Appellant was impecunious;
1.6 erred in drawing an adverse inference against the Appellant for his election not to put evidence before the Court on the question of his solvency;
1.7 erred in failing to have any or proper regard to the fact that the Respondents had failed to put any evidence before the court that they had carried out any searches to determine whether or not the Appellant had any interest in land in this State and/or whether or not the Appellant had any interest in any company in this State and or whether or not the Appellant had any other assets;
1.8 erred in finding that the Appellant’s Appeal had “very limited prospects of success” (at para 50 of the Judgment) and should have found that the Appeal had been brought bona fide, that the grounds of appeal raised “real issues to be tried” and that the Notice of Appeal had been settled by an experienced counsel from the Victorian Bar who was also counsel for the Appellant in Viscariello v Macks referred to below;
1.9 erred in finding that the evidence referred to and relied upon by the Respondents including the Appellant’s affidavit filed on 14 May 2013 and submissions made by him at the hearing on 20 May 2013 (see para 41 of the Judgment) supported a finding of impecuniosity.
Are “special circumstances” demonstrated?
The respondent’s application for security for costs was brought pursuant to Rule 295(1)(g), Supreme Court Rules 2006 which provides (relevantly):
295(1)The Court may exercise any of the following powers in relation to an appeal or an application for permission to appeal.
…
(g)The Court may, in special circumstances, order that security be given for the costs of an appeal;
A threshold requirement that “special circumstances” exist must be established for the discretion to order security for costs to be engaged. If so engaged, the decision as to granting of security for costs (including both whether to grant security, and if granted, in what amount) will be an entirely discretionary determination for the Judge[11] (although a number of factors do tend to come under consideration on a recurring basis).
[11] Rule 295(3) Supreme Court Rules 2006 provides that the power to order security in respect of appeals to the Full Court may be exercised by a single Judge.
May a demonstrated risk of impecuniosity alone suffice to constitute “special circumstances”
There is now an impressive group of single Judge decisions in South Australia in favour of the proposition that a demonstrated risk of impecuniosity may alone suffice to constitute “special circumstances”. In chronological order, they include: Archer v Woodhead Australia Pty Ltd,[12] Citicorp v Cirillo,[13] Foxgold Pty Ltd v Paterson,[14] Dagenham Nominees Pty Ltd (trading as Banwell Marine Service) v Shanks[15] and Morgan v WorkCover Corporation.[16]
[12] [1995] SASC 5020.
[13] (2003) 228 LSJS 132 (Sulan J).
[14] (2006) 245 LSJS 177 (Perry J).
[15] (2011) 110 SASR 577 (Blue J).
[16] [2013] SASC 47 (Stanley J).
However, it has also been noted that there may remain room for debate on this matter in the Full Court: see McVicar v S & J White Pty Ltd (trading as Arab Steed Hotel),[17] Morgan v WorkCover Corporation,[18] Sands v State of South Australia,[19] and Ramstrom v Baldino.[20]
[17] (2006) 245 LSJS 177 (White J).
[18] [2012] SASC 190 (Vanstone J).
[19] [2013] SASC 105, [10]-[11] (White J).
[20] [2014] SASC 29 (Nicholson J).
It is unnecessary to consider this particular question further, since Kelly J found that there are “special circumstances” in this case due to the combined force of three factors. These are: first, a demonstrated risk of impecuniosity; second, the limited prospects of success of the White J/Full Court appeal; and third, the fact that this is not a first appeal but rather involves a proposed second appeal against the decision of a Supreme Court Judge affirming a considered decision of the Tribunal panel which itself comprised three senior practitioners.[21] I turn to those three matters.
[21] The Tribunal panel was comprised of MT Pyke QC (Chairperson), SP O’Sullivan QC and GG Holland.
A demonstrated risk of impecuniosity
Kelly J held that the large amount of material submitted by the respondents (some of which her Honour set out in her judgment) founded an inference of impecuniosity in that there was a “high risk” that Mr Viscariello would be unable to satisfy an order for costs should he be unsuccessful in the White J/Full Court appeal.[22] (It is in that sense that I will use the term “impecuniosity” herein). In reaching that conclusion, her Honour emphasised three matters in particular.
[22] Viscariello v Livesey & Anor [2013] SASC 198, [49].
First, statements were made by Mr Viscariello during the course of an application to the Chief Justice on 20 May 2013 for an order restraining the firm Iles Selley from enforcing an allocatur arising from an order that he pay Iles Selley the amount of $9,305.03 for its taxed costs on a solicitor-client basis in relation to the dismissal of an application by Mr Viscariello for non-party disclosure.[23] Mr Viscariello read his 24th affidavit in Viscariello v Macks Supreme Court Action No 165 of 2006, and made oral submissions that he had had, and continued to have, huge expenses in relation to numerous sets of litigation. In particular, he submitted that 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.” (Emphasis added).[24]
[23] (The non-party being Iles Selley).
[24] 24th Affidavit of John Viscariello sworn 14 May 2013 at [10].
Mr Viscariello stated that, in relation to the payment of the amount of $9,305.03, “The evidence upon which the Court can be satisfied that I will suffer hardship is set out in my affidavit”. The following interchange then occurred:[25]
HIS HONOUR: What I didn’t notice was any evidence, expressly or specifically, that said ‘I don’t have these funds – that is around $10,000 – to pay. I can’t make any arrangements to pay, I will become bankrupt if I have to pay. These are my assets.’ Is there something like that in the affidavit?
MR VISCARIELLO: No, there isn’t and I had touched on this subject on the last occasion. I am reluctant to put that material before the court because it would arm my opponents, some of which have shown their face and others which have not, and I hear what your Honour said on the last occasion that Mr Selley is a solicitor and he ought not use affidavit material for purposes other than the proceedings and your Honour will please forgive me about being somewhat cynical about that. There are some respectfully very powerful forces at work to try and shut me down, there’s no question about that, and armed with that sort of information it would encourage them to take other steps to keep me going. If your Honour says ‘Mr Viscariello, I am not persuaded by what you have said’ then I fall on my own sword.
[25] T2-3 in SASC 165 of 2006.
Second, there were statements made by Mr Kendall QC, senior counsel for Mr Viscariello, during the course of an application on 17 June 2013 before Hayne J to stay the strike off order of the Full Court removing Mr Viscariello’s name from the roll of practitioners until Mr Viscariello's application for special leave to appeal against that decision could be heard by the High Court. The transcript of that hearing was before Kelly J.[26] Of particular note were the following submissions made to Hayne J:[27]
I will begin by going to the affidavit of Mr Viscariello. I will not read it, of course, but can we refer to what we say are the critical matters? As your Honour appreciates, he has been struck off the role [sic] and there has been an interim stay granted by the Full Court of South Australia of 28 days. The prejudice which Mr Viscariello would suffer is outlined in paragraphs 6 through to 13, or really 14. In essence it is this. He has practised as a partner in a firm of solicitors in Adelaide. He has substantial financial commitments to that firm. He does not have other employment to which he could readily go, and finally, he is engaged in very substantial litigation against a liquidator, and that is referred to in paragraph 13.3, in which part of the relief sought is an inquiry pursuant to section 536 of the Corporations Act, an inquiry into the conduct of a liquidator. It is a very substantial case. It has been heard at trial. Decision in that matter is reserved by the Chief Justice of South Australia. So that, in our submission, there is very substantial detriment which would arise to Mr Viscariello if he was required to cease practising altogether pending the hearing of the application for special leave to appeal in the first matter. …
[26] Her Honour refers to the transcript at [16].
[27] Viscariello v Legal Practitioners Conduct Board [2013] HCATrans 149.
Third, there was evidence of various unpaid costs awards made by the Courts against Mr Viscariello. True it is that, as Mr Viscariello argued, some of the awards had not been taxed, some of the awards were subject to dispute or various applications he had made, or intended to make, and some of the allocaturs were fairly recent or had not yet been formally enforced. However, while these arguments were correct to a point, the matter must be approached realistically. The estimated total of such costs orders was very substantial and the probabilities were that most of the total would in due course be sought to be enforced. As a good example of that proposition, the argument before Kelly J took place on 3 December 2013 and, as her Honour was informed, the High Court on that very day refused with costs two applications by Mr Viscariello for special leave to appeal against two separate judgments of this Court in dismissing Mr Viscariello’s appeals against the findings of unprofessional conduct and in ordering that his name be struck off the roll of practitioners.[28] This decision of the High Court removed any suggestion of any “contingency” in relation to a number of previous substantial costs orders against Mr Viscariello made by the Tribunal, the South Australian Supreme Court, and the High Court (to which were added the further new costs orders made by the High Court on 3 December 2013).
[28] Bell and Gageler JJ [2013] HCASL 188, A16/2013 and A19/2013 respectively refusing special leave to appeal against Viscariello v Legal Practitioners Conduct Board (No 2) [2013] SASCFC 27 and Legal Practitioners Conduct Board v Viscariello [2013] SASCFC 37.
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.
Kelly J accepted the respondents’ submission. This was an evaluative decision in circumstances where:
·The White J/Full Court appeal largely turns on a matter of statutory interpretation;
·The judgment of White J is on its face free of apparent inconsistency or illogicality;
·The applicant did not demonstrate cogent reasons before Kelly J why the concurrent decisions of White J and that of the Tribunal are incorrect as a matter of law; and,
·Any complaints about additional decisions by White J on further interlocutory matters[31] form no part of the substantive appeal as a matter of right presently under consideration. Any such complaints would have to be conducted via an application for permission to appeal to the Full Court.
[31] See Viscariello v Livesey & Anor [2013] SASC 99, [106]-[153] (White J).
I consider that Mr Viscariello has not demonstrated that Kelly J’s assessment was not open to her on an interlocutory application of this sort. That being so, it is neither necessary, nor appropriate, to determine what assessment I would make as to prospects of success.
A second rather than a first appeal
As to the third of the three cumulative matters (the fact that the White J/Full Court appeal is a second appeal), Kelly J correctly noted that the factual situation here involves a challenge to the judgment of White J which itself affirmed the considered decision of the Legal Practitioners Disciplinary Tribunal as to the correct interpretation of the legislation founding its jurisdiction. This is to be distinguished from the more commonly encountered situation of a first appeal. Thus her Honour stated:[32]
In effect, the Judge [White J] completely endorsed the approach of the Tribunal. While minds may differ on a question of statutory construction, I consider that weight must be given to the fact that two bodies, one judicial and the other quasi-judicial, have spoken with one voice in this case.
[32] Viscariello v Livesey & Anor [2013] SASC 198, [57].
Her Honour’s approach here is unexceptionable and the applicant has advanced no cogent submission to the contrary.
Further matters referred to in proposed ground 1 of appeal
For the above reasons, I consider that the whole of paragraphs 1.3, 1.5, 1.6, 1.7, 1.8 and 1.9 are not genuinely arguable. I consider it to be obvious that the remaining paragraphs also have no merit and I will deal very briefly with them.
As to paragraph 1.1, there was no complaint of delay by the respondents in bringing their applications made before Kelly J by Mr Viscariello. In any event, the analysis of the material before Kelly J by the respondents[33] demonstrates that there was no substantial delay attributable to them. Nor was it established that any delay that did occur prejudiced Mr Viscariello or should have resulted in the application for the order for security for costs being refused.
[33] First Respondent Outline of Argument at [17]-[22] and at the hearing.
As to paragraph 1.2, once Kelly J had found that there was a “high risk” that Mr Viscariello “will be unable to” pay an order of costs,[34] her Honour’s assessment of the amount of $40,000 as appropriate security of itself affords a measure of the prejudice that might well accrue if an order in favour of the respondents were not to be made.[35] Any suggestion that the respondents might not be liable to pay any fees to their solicitors and senior counsel is idle speculation and not supported by the evidence before Kelly J.
[34] Viscariello v Livesey & Anor [2013] SASC 198, [49]-[50].
[35] T47. Indeed, Mr Whitington QC submitted at the hearing that because of the way in which the litigation has unfolded, the figure of $40,000 may be ‘conservative”.
As to paragraph 1.4, I can agree with the general proposition that, all other things being equal, one may say that a corporate litigant resident outside the State might present a greater risk of refusing to pay an order for costs than a natural person resident in the State. But such comparisons simply did not arise here. Kelly J based her decision on matters specifically related to Mr Viscariello. Thus, reference to a hypothetical corporate non-resident is here irrelevant.
As to paragraph 1.7 (which was not argued before Kelly J), it is idle to suggest in all of the circumstances that the respondents should have led evidence about for example, what unencumbered real property (here, or interstate, or overseas) Mr Viscariello does not own or in what companies he fails to hold shares. If Mr Viscariello does hold unencumbered property of this, or any other type, of a value that would assuage concerns about his capacity to pay both the costs of the White J/Full Court appeal and his various other debts, that could have been communicated very quickly and expeditiously to Kelly J. The same applies to other types of assets. Any concerns that Mr Viscariello might hold about disclosing his financial position could have been addressed by reference to a confidential affidavit procedure or other appropriate orders to protect his position.
Proposed ground 1 of appeal is not genuinely arguable and permission to appeal to the Full Court should be refused.
PROPOSED GROUND 2 OF APPEAL: EXERCISE OF DISCRETION
Proposed ground 2 of appeal commences as follows:
2.Having erroneously found that the jurisdiction under Rule 295(1)(g) of the Supreme Court Rules had been enlivened, Her Honour erred in law and in fact in exercising her discretion to make an order staying the appeal pending compliance with the Order for Security in that her Honour …
There then follow some 24 paragraphs and subparagraphs of purported “particulars”. Some are quite irrelevant to the present application. Some purport to state serious allegations that are disputed as established facts in a highly tendentious way. I have had regard to those paragraphs and subparagraphs in order to discern whether there is an arguable ground of appeal but it is unnecessary to reproduce them.
The correct approach to the exercise of discretion on appeal
As stated above, once the threshold requirement of “special circumstances” is satisfied, the decision as to whether to order security for costs will be an entirely discretionary determination for the Judge. The correct approach to the exercise of that discretion is as summarised by King CJ (with whom Prior and Mullighan JJ concurred) in Consolidated Gold Mining Areas NL and Others v Enterprise Gold Mines NL:[36]
The principles governing the determination of an appeal from a decision on a point of practice and procedure may be gathered from the joint judgment of Gibbs CJ, Aickin J, Wilson J and Brennan J in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 176-177. Such a decision is discretionary in character. The appellate court will interfere only if the judge has acted on a wrong principle, has allowed extraneous or irrelevant matters to guide or affect him, has mistaken the facts or has failed to take into account some material consideration: House v The King (1936) 55 CLR 499,per Dixon J, Evatt J and McTiernan J at 505. These principles apply to all discretionary judgments but appellate courts exercise even greater restraint in reviewing decisions on matters of practice and procedure. Whilst there are no rigid or exhaustive criteria for determining when an appellate court will interfere with such a decision, it will be relevant to ask, generally speaking, not only whether an error of the kind referred to in House v The King (supra) has occurred but also whether it is accompanied by some injustice to the appellant.
[36] (1992) 57 SASR 584, 587.
Assertion of a matter of public interest
Most of the subparagraphs of proposed ground 2 of appeal are taken up with complaints that Kelly J “failed to have any or proper regard”[37] to the “substantial public interest” followed by the assertion of varying alternative formulations of such public interest.
[37] As to the formulation “any or proper regard”, it is not ideal but I accept that although the traditional formulation in House v The King (1936) 55 CLR 499 refers to a failure simpliciter to take into account a particular relevant factor, it is recognised that a failure to give “adequate weight” to relevant considerations may in some circumstances amount to a failure to exercise the discretion actually entrusted to the court. (See decisions of the High Court such as Norbis v Norbis (1985-1986) 161 CLR 513, 535; Mallett v Mallett (1984) 156 CLR 605; Dinsdale v The Queen (2000) 202 CLR 321. Questions of the precise formulation or limits of that principle do not arise in the present case.)
As to the various references to “public interest” in the context of the present application, the approach of Mr Viscariello is flawed in suggesting that he undoubtedly has a particular statutory right and will be prevented from exercising it by the order for security for costs. As an example, he states at paragraph 2.8 of the proposed ground 2 of appeal:
[Kelly J] failed to have any or proper regard to the fact that the Appellant was defending an attack by the Respondents on his statutory right under the Act to bring and prosecute the Charges against the Respondents in which case he is in effect a ‘Defendant’.
(Emphasis added)
In his summary of argument,[38] Mr Viscariello reproduces or refers to a number of decisions including Warren Mitchell Pty Ltd v Australian Maritime Officers’ Union & Ors;[39] Friends of Hinchinbrook Society Inc v Minister for Environment & Ors;[40] Ilat Nominees Pty Ltd v Murragong Nominees Pty Ltd;[41] Maritime Services Board of New South Wales & Federal Airports Corporation v Citizens Airport Environment Association Inc (Third Runway Case);[42] Classic Ceramic Importers Pty Ltd v Ceramica Antiga SA;[43] Archer Pty Ltd v Woodhead Australia Pty Ltd;[44] and Smail v Burton: Re Insurance Associates Pty Ltd (in liq)[45] on the basis that the statements there made about public interest were directly applicable to the present case.
[38] Paragraphs 3.11 to 3.18.
[39] (1993) 12 ACSR 1, 7.
[40] (1996) 45 ALD 532.
[41] (1980) 48 FLR 385, 387.
[42] (1992) 83 LGERA 107, [9].
[43] (1994) 13 ACSR 263, 268.
[44] [1995] SASC 5020.
[45] [1975] VR 776.
However, those cases mainly concerned different situations where a litigant undoubtedly had a particular right or standing and was asserting that he or she would be prevented from exercising that right or standing if an order for security were to be made. The Courts there stated that, in such circumstances, a public interest in the litigant exercising his or her right or standing could be taken into account when exercising the discretion as to whether or not to impose an order for security.
In the present case, the very question under consideration by both the Tribunal and White J was whether Mr Viscariello did have a particular right or standing and both decided that, as a matter of statutory interpretation of the relevant statute, he did not. The same question is sought to be agitated in the White J/Full Court appeal. In so far as it may said that there is a public interest in that question being argued for a third time in the Full Court, it is clearly to be distinguished from the type of public interest under consideration in the authorities referred to above.
Against this background, it is obvious that the approach taken by Kelly J was correct. Her Honour stated:[46]
[61]The appellant argued that, in the event the Court were to find reasonable grounds to suspect impecuniosity for the purposes of being a “special circumstance” under Rule 296(1)(g), security should not be ordered on the ground of public interest. The public interest said to arise relates to the nature of the proceedings, namely, concerning statutory construction of a “person aggrieved” under section 82 of the Legal Practitioners Act 1981 (SA). The appellant laboured the point that the merits of his initial complaint to the Tribunal concern the conduct of practitioners – a matter of public interest.
[62]While I acknowledge that there exists a public interest in the maintenance of the integrity of the profession, I am of the view that this matter, having been twice reviewed, has never been other than litigation of a character which is private in nature. In any event, even if I am wrong about that, I do not consider that this would preclude me from exercising the discretion to order security. I refer to and adopt White J’s observations in Sands on this point, where his Honour observed:[47]
I agree that this may well be an issue of significant interest. However, litigation between two parties often raises issues of significance or of public importance but, nevertheless, retains its private character. I see no reason why the fact that the appeal may involve a question of public interest should militate against an order for security, if that is otherwise appropriate.
[46] Viscariello v Livesey & Anor [2013] SASC 198, [61]-[62].
[47] Sands v State of South Australia [2013] SASC 105, [43].
Stultification of the White J/Full Court appeal
As noted above, a feature of the proceedings before Kelly J was that Mr Viscariello insisted on maintaining that the respondents had not demonstrated an inference of a risk of impecuniosity and, accordingly, that there was no reason for him to inform the Court of any details of his net worth.
Consistently with that strategy, Mr Viscariello declined to make any submission that an order for security for costs would stultify the White J/Full Court appeal. His clear forensic decision was that to make such a submission would be to admit that there was a major risk that he would not eventually be able to satisfy an order of costs against him. So it was that her Honour concluded:[48]
[64]As I have previously observed, the appellant himself did not assert that he would be unable to prosecute this appeal if an order for security for costs were made. The appellant eschewed any submission that the effect of any order made would stultify the prosecution of the appeal and instead chose to contest the respondents’ applications on the basis that the evidence pointed to is insufficient to raise an inference. I repeat my conclusion that the appellant, an experienced practitioner, appears well able to represent himself and has done so on a number of occasions in the past. The appellant has chosen not to respond to the inference raised that he does not have sufficient assets and liabilities to make payment of costs already ordered and any further costs which might be incurred by the prosecution of this appeal.
[65]In the absence of evidence put by the appellant, I am unable to conclude that an award for security would have the effect of stultification of the appeal.
[48] Viscariello v Livesey & Anor [2013] SASC 198, [64]-[65].
The correctness of this conclusion is not open to serious question.
Finally, I note that the position that Mr Viscariello now takes on the present application is to continue to refuse to make any admission of impecuniosity in the present proceedings. He seeks to argue that the very finding of impecuniosity by Kelly J, together with her Honour’s decision to impose the order complained of, is good evidence of stultification of his appeal. Thus in paragraph 2.12 of the proposed ground 2 of appeal, he claims that her Honour erred in law and in fact in exercising her discretion to make an order staying the appeal pending compliance with the order for security in that she:
2.12On the one hand [found] that the appellant was “impecunious” so as to enliven the Jurisdiction of Rule 296(1) (g) of the Supreme Court Rules and make an order for security and on the other hand, inconsistently, [found] (at para 65 of the Judgment) that “In the absence of evidence put by the appellant, I am unable to conclude that an award for security would have the effect of stultification of the appeal”.
If Mr Viscariello puts this forward as an apparent paradox, the answer is readily to hand. In the majority of cases, an order for security for costs will be opposed on the forthright basis that it will have a tendency towards stultification of the appeal. However, such tendency can only be one factor to be balanced against other factors such as low prospects of success of the appeal and high risk of the respondent being unable to enforce an award of costs. Further, many such appeals do ultimately proceed despite an order for security for costs having been made. In the case of Mr Viscariello, he has demonstrated an ability to conduct proceedings in person and has made no suggestion that he would not personally conduct the White J/Full Court appeal if unable to brief counsel. Indeed he has made no direct claim at all that the White J/Full Court appeal would be in any way stultified by the making of the order for security for costs.
There are no other matters in the various paragraphs and subparagraphs of proposed ground 2 of appeal that raise any matter of substance. Proposed ground 2 of appeal is not genuinely arguable and permission to appeal to the Full Court should be refused.
PROPOSED GROUND 3 OF APPEAL: QUANTUM OF SECURITY
Proposed ground 3 of appeal is as follows:
3.Having erroneously made an order that the Appellant pay security for costs Her Honour erred in law in then:
3.1fixing the amount of the security in the sum of $40,000.00; and
3.2 fixing that sum to secure both the Respondents’ costs of the appeal, in that Her Honour:
3.3 denied the appellant natural justice, procedural fairness and the right to be heard in relation to and connection with the amount of security and the amount of security to be fixed for each Respondent, (see proposed Order 6 of the Appellant’s Application filed on 29 November 2013) and should have fixed a separate amount of security for each respondent.
Proposed ground of appeal 3.1
As to proposed ground of appeal 3.1, Mr Viscariello has failed to elucidate in what way Kelly J “erred in law”. I have no suggestions. No arguable ground of appeal arises.
Proposed ground of appeal 3.2
As to proposed ground of appeal 3.2, it is sufficient to say that charges of unprofessional conduct were sought to be made against each of the respondents, one a Queens Counsel and the other a junior solicitor. In such situations, there is a real possibility of a conflict of interest, and separate representation is at the very least desirable. In view of the seriousness of the charges, retention of senior counsel by each of the parties was understandable. It is true that there is a high commonality of interest in the particular context of this application for security for costs, but that is a matter that can be addressed at an eventual taxation of costs should it be necessary. No prejudice to Mr Viscariello has been caused by Kelly J making a single order for security for costs in the amount of $40,000 rather than two separate amounts having that same total. No arguable ground of appeal arises.
Proposed ground of appeal 3.3
As to proposed ground of appeal 3.3, reference to the transcript of the hearing before Kelly J on 3 December 2013 discloses that her Honour clearly indicated to counsel that she wished to hear and complete full argument on all outstanding matters that day; to reserve judgment on all matters; and to then deliver judgment on all matters before Christmas. Counsel for the respondents made it clear that they accepted that timetable and put all that they wished to as to the amount of security. They agreed with her Honour’s suggestion that a “broad axe approach” was to be taken. All of this would (or certainly should) have conveyed to Mr Viscariello that neither Kelly J nor counsel for the respondents acquiesced in any suggestion that the matter should go off to yet another hearing day for separate submissions as to quantum with the associated further expense and delay that that would have entailed.
Reference to the transcript shows that Mr Viscariello never raised an objection to Kelly J’s proposed timetable and never submitted to her Honour that that he wished that the matter of quantum should be left in abeyance. While he had originally made a written application to this effect,[49] he never alluded to that matter during the course of the hearing. Mr Viscariello had every chance to take issue with Kelly J’s proposed schedule, to make submissions in favour of an adjournment of consideration of quantum and/or to make submissions as to quantum. He chose to do none of those things. It would have appeared to her Honour, as well as to counsel for the two respondents, that Mr Viscariello was not pressing for that order and in fact had abandoned the application.
[49] Interlocutory Application filed on 23 November 2013: “The Appellant, John Viscariello applies to the Court for the following order(s)/relief … 6. If the Court is minded to make an order that the Appellant pay security for costs of the Respondents (which is opposed by the Appellant), the issue of quantum of the security for costs be set down for a separate argument having regard to the depositions made in the Affidavit of John Viscariello filed contemporaneously herewith this my affidavit”.
In any event, having regard to the approach to the litigation that Mr Viscariello was seen to be taking, the revised combined estimate of the respondents to the total of about $60,000 was unremarkable on its face.[50] It is quite usual for a Judge to take a conservative approach and order an amount for security for costs which is later substantially exceeded on an ultimate taxation of costs. On a consideration of all of the circumstances, I consider that her Honour took that sort of a conservative approach and that even if the Full Court were to re-exercise the discretion as to quantum, there is no reasonable prospect that the Court would come to a lower figure than $40,000. Mr Viscariello has suffered no prejudice. Proposed ground of appeal 3.3 does not raise an arguable ground of appeal.
[50] Viscariello v Livesey & Anor [2013] SASC 198, [67]-[68].
I find that proposed ground 3 of appeal is not genuinely arguable and permission to appeal to the Full Court should be refused.
Orders
I would order that permission to appeal to the Full Court against the judgment and orders of Kelly J dated 19 December 2013 is refused.
BAMPTON J. I agree with the reasons of Peek J and with the order he proposes.
PARKER J. I would order that permission to appeal to the Full Court against the judgment and orders of Kelly J dated 19 December 2014 is refused.
I agree with the reasons of Peek J and have nothing to add.
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