Viscariello v Livesey & Anor - [2013] SASC 198

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
VISCARIELLO v LIVESEY & ANOR
[2013] SASC 198
Judgment of The Honourable Justice Kelly
19 December 2013
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - SECURITY FOR COSTS
PROCEDURE - COSTS - SECURITY FOR COSTS - OTHER REASONS FOR SECURITY
The two respondents seek orders that the appeal filed by the appellant on 18 July 2013 be dismissed. In the alternative, the respondents seek an order for security for costs and that procedural directions be given by this Court.
The appellant seeks an order that the Judge recuse herself from hearing the respondents’ applications. In the alternative, the appellant seeks orders that the whole of the respondents’ interlocutory applications be referred to the Full Court for hearing and determination.
Whether Judge should recuse self from proceedings. Whether appeal should be dismissed. Whether applications for security should be allowed.
Held:
(1) Application to recuse self from proceedings declined (at [14]-[20], [71]).
(2) Applications that the appeal be dismissed refused (at [21]-[34], [71]).
(3) Applications for security allowed (at [32]-[69], [71]).
(4) The further prosecution of the appeal be stayed until the appellant has paid into the Court the sum of $40,000.00 to secure the respondents’ costs of the appeal (at [71]).
(5) The questions of procedure, including the resolution of the dispute concerning the appeal books, stayed until appellant has paid security for costs into the Court (at [70]-[71]).
(6) Parties to be heard as to any further orders (at [71]).
Legal Practitioners Act 1981 (SA) s 82, referred to.
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Hall v City of Burnside (No 8) [2008] SASC 318; Sands v State of South Australia [2013] SASC 105; John Viscariello v Legal Practitioners Conduct Board [2013] HCASL 188 (3 December 2013); Citicorp Australia Ltd v Cirillo [2003] SASC 204; iscariello v Legal Practitioners Conduct Board [2013] HCATrans 149 (17 June 2013); Viscariello v Livesey & Anor [2013] SASC 99; Legal Practitioners Complaints Committee v Trueman (Unreported, Supreme Court of South Australia, Cox, Perry and Lander JJ, 4 December 1996); Clyne v Bar Association of New South Wales (1960) 104 CLR 186; Bar Association of New South Wales v Evatt (1968) 117 CLR 177; Weaver v Law Society of New South Wales (1979) 142 CLR 201, considered.

VISCARIELLO v LIVESEY & ANOR
[2013] SASC 198
Civil
KELLY J.

The two respondents seek orders that the appeal filed by the appellant on 18 July 2013 be dismissed. In the alternative, the respondents seek an order for security for costs and that procedural directions be given by this Court. In addition to the respondents’ applications for dismissal or security for costs, the appellant seeks an order that I recuse myself from hearing the respondents’ applications. In the alternative, the appellant seeks orders that I refer the whole of the respondents’ interlocutory applications to the Full Court for hearing and determination.
Background
On 7 June 2012, the appellant, John Viscariello, laid charges of unprofessional conduct against Mark Livesey QC, the first respondent, and Tyneil Flaherty, the second respondent, in the Legal Practitioners Disciplinary Tribunal. 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.
On 14 August 2012, the Tribunal dismissed the charges against the first and second respondents. The Tribunal found that the appellant lacked standing to bring the charges. The Tribunal found that the appellant’s grievance arose by reason of the alleged conduct of Mr Macks as liquidator, and not by reason of the conduct of either of the two respondents.
On 31 August 2012, the appellant appealed that decision. A Judge of this Court dismissed that appeal on 27 June 2013.[1]
[1] Viscariello v Livesey & Anor [2013] SASC 99.
On 18 July 2013, the appellant appealed against the judgment and orders of the Judge of 27 June 2013, including the order that the appellant pay the respondents’ costs of the appeal, to the Full Court.
On 25 October 2013, the first respondent filed an application seeking, inter alia, that the appeal be dismissed pursuant to Rule 296(1) of the Supreme Court Rules 2006 (SA), in the alternative that the Appellant provide security for costs in the sum of $27,720.00 pursuant to Rule 295(1)(g) of the Supreme Court Rules 2006 (SA) and for directions concerning the content of the appeal books and the conduct of the appeal generally.
An affidavit sworn by Matthew Selley, solicitor for the first respondent, on 24 October 2013 was filed in support of this application. This application came on before a Judge of this Court who referred the application for directions concerning the contents of the appeal books to a Master.
On 12 November 2013, the second respondent filed an application in almost identical terms to the first respondent’s application of 25 October 2013.
An affidavit sworn by Debrah Maria Mercurio, solicitor for the second respondent, on 12 November 2013 was filed in support of this application. This application was to be heard by a Master of this Court, however pursuant to Rule 295(3) of the Supreme Court Civil Rules 2006 (SA), both applications must be heard by a Judge of the Supreme Court and not a Master.
The first respondent supplied a written outline of argument and made oral submissions in support of the first application. Counsel for the second respondent accepted that the second respondent’s application, in effect, mirrored the first respondent’s application, and so sought to rely on the arguments put by the first respondent.
Following an adjournment after the respondents’ oral submissions on their applications, on 29 November 2013, the appellant filed an interlocutory application requesting that I recuse myself from taking any further part in the hearing and determination of this appeal. That application was in the following terms:
1That this Application be made returnable to the hearing before the Honourable Justice Kelly at the hearing listed at 9.30am on Tuesday, 3 December 2013.
2That the Honourable Justice Kelly recues [sic] herself from taking any further part in the hearing and determination of this Appeal including the hearing and determination of all or any of the Applications filed by all or any of the respective parties to this Appeal.
3That in the alternative to Order 2 above that this Appeal be referred to the Full Court of the Supreme Court of South Australia for directions in relation to the future conduct of the Appeal including the hearing and determination of all or any of the Applications filed by all or any of the respective parties to this Appeal.
4In the further alternative that the hearing and determination of the Applications filed by the First and Second Respondents be held in abeyance pending the hearing and determination of the Appellant’s Application (in relation to a breach of the implied undertaking) filed on 7 November 2013 in John Viscariello v Peter Ivan Macks – SASC Action No 165 of 2006.
5In the further alternative that the following paragraphs or portions of the paragraphs of the Affidavit of Mr Matthew Selley sworn on 24 October 2013 be struck out:
5.1    paragraph 13 commencing from “...I am concerned…” and ending “…without further delay.”;
5.2    paragraphs 15, 16, 17, 18, and 39 in their entirety;
5.3    paragraph 19 commencing from “…he has been and remains” and ending …“Appeal is unsuccessful.”;
5.4    paragraph 23 commencing from “The First Respondent has” …and ending… “those costs.” And commencing from …“but informs me …” and ending “…be dismissed”;
6If 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 with this my affidavit.
An affidavit sworn by the appellant on 29 November 2013 was filed in support of this application.
The matter resumed before me on 3 December 2013. On this date, the appellant responded to the respondents’ submissions on their applications. Submissions were made by both parties on the appellant’s application for recusal.
As a preliminary matter I note the decision of the Chief Justice in Viscariello v Macks Supreme Court file number 165 of 2006 delivered on 2 December 2013. In accordance with that ruling, it is my view that the content of the affidavits objected to by the appellant in his interlocutory application of 29 November 2013 are admissible in these proceedings. I decline to exclude the portions of the affidavits objected to by the appellant.
Application for Recusal
The appellant advanced submissions that I recuse myself on the basis of apprehended bias. He contended that there is a reasonable apprehension of bias in that the public perception of the Court may be harmed by the apprehension that there may be prejudice or a lack of independence in the administration of justice in the hearing and determination of this appeal, including the hearing and determination of all applications filed in this appeal. The appellant based this argument on two recognised categories of apprehended bias. The first was that a conclusion of apprehended bias could be drawn from an association between myself and a party to the proceeding. The second was that the use of extraneous information may have a prejudicial effect.
The appellant argued that the Supreme Court of South Australia is not, or no longer appears to be, objective, independent and impartial with regard to this matter as a significant element of its membership has had or has an adverse bias against the appellant in the determination of cases which he has been involved in. The appellant further submitted that the status of the first respondent as a Queen’s Counsel who often appears in this Court and of the second respondent as a junior practitioner in a major law firm in this State, created a circumstance in which he could not receive a fair hearing in this Court. This was said to be compounded by the fact that the representatives of the respondents are both Senior Counsel who frequently appear in this jurisdiction.
The extraneous information said to have a prejudicial effect related to submissions made by counsel for the first respondent before me at the first hearing of the applications. These submissions concerned successful strike off proceedings brought against the appellant, as well as statements concerning the reputation of the first respondent. The appellant alleged that bias arose from my receipt of a transcript of hearing before Hayne J where counsel for the appellant in another matter made submissions concerning the effect that the striking off from the roll of practitioners would have on the appellant’s financial means. This transcript was exhibited to Mr Selley’s affidavit filed in support of the first respondent’s application.
The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge is required to decide. The High Court in Ebner v Official Trustee in Bankruptcy described the test for the apprehension of bias as a two staged process as follows:[2]
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
[2] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [8].
I consider that insufficient particulars and insufficient evidence were put by the appellant in support of his application that I recuse myself. Regarding the first stage of the test for apprehension of bias, the appellant did not clearly identify what might lead me to decide this matter other than on its legal and factual merits. As for the second stage of the test, the appellant was unable to articulate in other than broad terms a logical connection between my deciding the applications for dismissal and security, and the feared deviation from the course of deciding these applications on their merits.
In my view, the appellant has not made out any basis to suggest that any fair-minded observer could apprehend bias on my part, nor did he establish any connection between what he asserted were the two bases for disqualification, namely association and extraneous information, and how it is that those two factors might bear upon my assessment of the applications before me.
The respondents’ submissions are correct. I decline to recuse myself.
Application that the Appeal be Dismissed
Rule 296(1) of the Supreme Court Rules 2006 (SA) provides:
If the party having the carriage of an appellate proceeding fails to set the proceeding down for hearing within the time fixed by practice direction, another party may apply to the Court for permission to set the proceeding down for hearing or for an order dismissing the proceeding.
Supreme Court Practice Direction 6.19 provides:
An appellate proceeding to be heard by the Full Court is to be set down by the appellant or the party having carriage of the proceeding within two months of the commencement of the proceeding. If permission has been granted to another party under Rule 296(1) to set the proceeding down for hearing, that party is to set the proceeding down within 4 weeks of the grant of permission.
The respondents submitted that as the appellant filed the appeal on 18 July 2013, pursuant to Rule 296 and Supreme Court Practice Direction 6.19, he had until 18 September 2013 to have the appeal set down. It was the respondents’ case that the appellant had failed to prepare the appeal books and set down the appeal within the requisite two months as the only step to be taken within that time was the circulation of a draft index to the Senior Deputy Registrar one day prior to the expiration of the time period, and without the opportunity for the first respondent to review that index. The respondents contended that the appellant’s failure to set down the appeal within two months gave rise to a procedural right to request that the Court dismiss the appeal.
The respondents drew the Court’s attention to Hall v City of Burnside (No 8)[3] where the Full Court considered an application for permission to appeal a decision refusing to extend the time for setting down the appeal. In particular, the respondents highlighted the following observations of Kourakis J, as he then was:[4]
The decision of the High Court in Jackamarra v Krakouer clearly establishes that the relative weight of the discretionary factors affecting the exercise of a discretion to extend time differs according to whether more time is sought to commence an action or to take a step in an existing action.   The institution of an action immediately puts the respondent on notice of the extent of his or her contingent liability and alerts him or her to the need to obtain and preserve relevant evidence. A respondent can also approach the court before which he or she has been brought and seek orders to ensure the prompt prosecution of the action. If the action is not promptly prosecuted a respondent may apply to have it dismissed. There is yet a further difference. When the time for instituting an action has expired, a prospective respondent has an identifiable substantive right. Where no action has been brought the right is in the nature of an immunity from suit.   Where a judgment has been given, the parties bound by it are protected, subject to any properly instituted appeal, from further disputation over the competing claims that have been conclusively settled by the curial adjudication.   However, where a proceeding, whether it is a proceeding at first instance or an appellate proceeding, has been instituted, it is not meaningful to speak of a respondent’s right to have that action heard within a particular time. The time that will be taken to resolve the action will depend on many circumstances, including the procedures and resources of the court in which the action is brought. It might be said that the respondent has a procedural right to the expeditious prosecution of the matter in accordance with the rules of the court, but the right so described is a very different right to the substantive rights a prospective respondent enjoys before the commencement of the action.   Moreover, as I have just observed, a respondent can enforce that procedural right by approaching the court for orders that the action be prosecuted diligently.
…
I accept that a history of repeated non-compliance with rules of court and time limits is a relevant matter. That history may show that there is little prospect that the applicant requesting more time will make good use of it. Moreover, there is a limit to the waste of its time and resources that a court is prepared to tolerate.   However, in this case the appeal would have been set down almost immediately if an extension of time was granted because both respondents concede that they would have consented to the appeal proceeding on the books prepared by the appellants if they were excused from certifying them.
There is a final, and to my mind weighty, consideration that supports the grant of an extension of time in which to appeal. It is, I think, impossible to reconcile the respondents’ contention that in the circumstances of this case they would suffer overwhelming prejudice if the small extension sought by the appellant was granted with their failure to take any action to have the appeal dismissed for want of prosecution after the period of two months allowed by the applicable practice direction elapsed. That is particularly so in the case of City Apartments who were well aware that the appellants were attempting to settle the matter before setting down the appeal. Furthermore, by letter dated 20 May 2008 the appellants’ solicitor had asked City Apartments’ solicitor to advise what materials he wished to have included in the appeal book. No reply was given. The Judge did not refer to this consideration. I am satisfied, in the particular circumstances of this case, that the failure to refer expressly to it shows that the Judge did not have regard to it.
[footnotes omitted]
[3]    Hall v City of Burnside (No 8) [2008] SASC 318.
[4]    Hall v City of Burnside (No 8) [2008] SASC 318, [74], [83]-[84].
In support of the application for the enforcement of the procedural right to have the appeal dismissed, the first respondent, with the second respondent relying on the submissions made, contended that the decisions of the Tribunal and the appeal court were in his favour but that he was now subject to the uncertainty of a further appeal. He argued that the right to have the matter dealt with expeditiously is reinforced by the fact that the subject matter of the proceedings concerns the professional conduct of the first respondent. Finally, the first respondent contended that he had received a costs order in his favour but had not yet recovered those costs and faced accruing further costs in defending, without the benefit of the cost orders from the Court below.

The appellant opposed the applications on the ground of public interest, citing a number of decisions concerning disciplinary proceedings against members of the profession.[5] In opposition to the applications for dismissal, the appellant’s main argument was that the reason the appeal had not yet been set down was a delay in finalising the case books, resulting from the parties’ inability to agree on the content of the books pursuant to the draft index circulated by the appellant on 17 September 2013. The appellant requested that the dispute as to the contents of the case books be referred to a Master for resolution. The appellant requested that the determination of the dismissal and security applications be listed before the Full Court.
[5] See Legal Practitioners Complaints Committee v Trueman (Unreported, Supreme Court of South Australia, Cox, Perry and Lander JJ, 4 December 1996); Clyne v Bar Association of New South Wales (1960) 104 CLR 186; Bar Association of New South Wales v Evatt (1968) 117 CLR 177; Weaver v Law Society of New South Wales (1979) 142 CLR 201.
I mention at this point that the first respondent’s application, the first in time of the applications, was initially listed before a Judge of this Court. The matter was not, however, heard and resolved on that occasion. The Judge made orders referring the matter to a Master of this Court for the purpose of dealing with the contents of the appeal books. The matter was to then be remitted back to the Judge to be listed before the Full Court and was adjourned to 1 December 2013 for further consideration. After the second respondent filed her application both applications came on for hearing before me on 22 November 2013. Thereafter events have effectively overtaken the orders made by the single Judge on 1 November 2013. Insofar as it might be necessary I therefore recall the orders made by the single Judge on 1 November 2013.
I decline to refer the dismissal and security applications to the Full Court. In my view, it is inappropriate and unnecessary to take up the Full Court’s time by dealing with matters which the Supreme Court Rules 2006 (SA) clearly stipulate may be dealt with by a single judge.
Nevertheless I am not prepared to accede to the respondents’ request that the appeal be dismissed pursuant to Rule 296(1). As I have mentioned earlier, the appellant emailed a draft index to the Senior Deputy Registrar one day prior to the expiration of the two month time period within which the appeal books should have been prepared and the appeal set down. In his affidavit, Mr Selley deposed that the first respondent had not been given the opportunity to review that draft index. Mr Selley exhibited email correspondence between the parties and the Senior Deputy Registrar concerning the respondents’ issues with the draft index.
It is apparent that the dispute concerning the content of the appeal books is ongoing. Although the appellant left it until the eleventh hour to submit a draft index, nevertheless I consider it would be unreasonable in light of the ongoing dispute as to the contents of the appeal book to dismiss the appeal at this stage.
In these circumstances, the application for dismissal is refused. I turn now to consider the respondents’ alternative application.
Application for Security for Costs
Rule 295(1)(g) of the Supreme Court Rules 2006 (SA) sets out the Court’s power to order security in appellate proceedings. That rule provides:
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;
…
Rule 295(1)(g) was the subject of recent consideration by this Court in Sands v State of South Australia.[6] Allowing an application for an order for security for costs, White J observed that “[t]he power to order security is enlivened if ‘special circumstances’ exist. By subrule (3), the power to order security in respect of appeals to the Full Court may be exercised by a single Judge.”[7]
[6] Sands v State of South Australia [2013] SASC 105.
[7] Sands v State of South Australia [2013] SASC 105, [5].
The respondents submitted that special circumstances existed in the present case to justify an order for security. These special circumstances included a reasonable inference that the appellant is impecunious, that the appellant had failed to provide evidence of his financial circumstances capable to respond to the inference of impecuniosity, and that the appellant’s chances of success on the appeal are slim.
The Appellant’s Impecuniosity
The respondents argued that a reasonable inference arises that the appellant is impecunious based on evidence put before this Court.
Counsel for the first respondent referred me to the transcript of hearing before Hayne J on 17 June 2013, where counsel for the appellant in another matter said, “The critical matter for [the appellant] is that if he is required to cease practice he will very quickly have no income.” In his affidavit, Mr Selley deposed to the appellant’s reading of an affidavit in Supreme Court action number 165 of 2006, a separate proceeding, where he deposed that he would suffer prejudice and financial hardship were this Court to permit the enforcement of an allocatur against him. The affidavit referred to the appellant having been struck off the roll of legal practitioners and having appealed that decision to the High Court. On 3 December 2013, the High Court refused the appellant’s special leave to appeal the dismissal of the reopening of the appeal and of the order that the appellant’s name be removed from the roll.[8]
[8] John Viscariello v Legal Practitioners Conduct Board [2013] HCASL 188 (3 December 2013).
The first respondent drew the Court’s attention to the judgment of Sulan J in Citicorp Australia Ltd v Cirillo, where his Honour, concluding impecuniosity upon the unchallenged facts, observed:[9]
Mr Stevens who appeared for Cirillo submitted that it was not open to me to draw the inferences sought by Citicorp. Mr Stevens further submitted that Cirillo is not required nor bound to provide evidence of his financial circumstances. He submitted that the failure of Cirillo to provide any evidence of his financial circumstances or to respond to the various requests of Citicorp that he provide details of his financial circumstances cannot be used as evidence of Cirillo’s impecuniosity. I agree with Mr Stevens’ submission. However, that does not conclude the matter, because if there are facts established from which it is open to a court to infer that Mr Cirillo is impecunious, then his failure to provide evidence of his financial circumstances can lead a court to more readily draw the inference and conclude that he is impecunious. Cirillo’s financial position is something peculiarly within his own knowledge and he could, if he so desired, refute the inference that Citicorp seeks to have the court draw.
[9] Citicorp Australia Ltd v Cirillo [2003] SASC 204, [11].
Counsel for the second respondent submitted that the admissions made by the appellant in the related proceedings referred to above raise an inference that the appellant will be unable to pay any costs in respect of this appeal if unsuccessful and submitted that the appellant’s election not to put any evidence to refute the inference leaves open to me the conclusion that there is a real concern about impecuniosity in this case.
The appellant attempted to refute the respondents’ contentions by pointing out that he had never been issued with a bill of costs by either respondent in connection with these proceedings. The appellant contended that the respondents had not placed any evidence before this Court which could support the inference that he is impecunious.
In submissions, the respondents pointed to three allocaturs already given in related proceedings. In his affidavit, Mr Selley deposed to an application in related proceedings for which his firm was awarded costs against the appellant by order of the Court in the amount of $9,305.03. In his affidavit, Mr Selley referred to a second allocator which was issued in May this year in favour of the first respondent against the appellant for the sum of $3,248.01 for the first respondent’s costs of defending an unsuccessful application for non-party disclosure made by the appellant in related proceedings. In her affidavit, Ms Mercurio deposed to a costs order that had been made by the Court in her firm’s favour against the appellant in the sum of $13,107.91, but for which no steps for recovery had yet been taken due to a pending application by the appellant which related to the costs order.
In support of the submission that there is a likelihood that the appellant would be unable to meet any costs order, the respondents pointed to sworn evidence from the appellant himself. In an affidavit filed in related proceedings sworn on 14 May 2013, in relation to a submission about the financial hardship that would be caused to him if he was ordered to pay costs in a related matter, the appellant stated that his estimation of the cost of the prosecution of the action is well in excess of $2,500,000.00. That cost was in addition to the cost of all the other proceedings brought by him or against him in other matters. The appellant followed up that affidavit with submissions before the Chief Justice on 20 May 2013, in which he submitted:[10]
HIS HONOUR: As best you can then: how would you say, on the material that I have got, I could come to the conclusion that you would suffer irreparable prejudice if the order was enforced?
MR VISCARIELLO: I guess I can say this: I don’t have unlimited resources so if your Honour was to make an order saying ‘I want you to pay Mr Selley today’ and he issued then reissued a bankruptcy notice I might have to get a loan from bikies at 60% a year to save myself going bankrupt. You might say ‘Mr Viscariello, that’s your problem, you might do that’. I have had to do all sorts of things to keep this proceeding going. So depending how big a mountain your Honour wants me to climb, do I go to relatives? Do I go to friends?
[10] Affidavit of Matthew Selley sworn 24 October 2013, exhibit MS10.
The following month in proceedings for permission to appeal in another matter, Viscariello v Legal Practitioners Conduct Board,[11] the appellant’s then counsel Mr Kendall QC before Hayne J made the submission quoted at [36] herein of these reasons.
[11] Viscariello v Legal Practitioners Conduct Board [2013] HCA Trans 149 (17 June 2013).
Upon the first hearing on 22 November, after hearing submissions from both respondents on their applications, the matter was adjourned to 3 December 2013 for the express purpose of enabling the appellant to file any material in response to the applications and make further submissions. On the adjourned date the appellant did hand up to the Court written submissions dated 3 December 2013 and addressed those submissions. The appellant submitted:
If the appellant having security for costs ordered against them wanted to challenge the order and seek the court’s discretion, such as for the ground that security would stultify the appeal, would carry the burden of proof and would need to make full and frank disclosure of assets and liabilities. But this is not the case here as the Appellant is submitting that an application for security has simply not been made out. If an applicant for security, who carries the onus of proof, issued a subpoena for documents to prove special circumstances, the subpoena could be denied by the discretion of the court, such as if the court considered the evidence unnecessary, or a fishing exercise or if an order for security was unlikely to succeed.
[footnotes omitted]
It is correct, as the appellant asserts, that the onus in this matter does lie with the respondents to produce credible evidence that there is reason to believe that the appellant will be unable to pay the respondents’ costs.
The respondents have pointed to the sworn affidavit of the appellant and to his submissions before various courts and submit that that material raises credible evidence, which at the very least requires some response from the appellant.
The appellant has chosen to contest the respondents’ applications on the basis that the evidence pointed to is insufficient to raise an inference. He has specifically eschewed any submission that the effect of any order made would stultify the prosecution of the appeal. To the contrary, it appears that the appellant who is an experienced practitioner is well able to represent himself and has done so on a number of occasions in the past. The appellant has also chosen not to respond to the inference which I consider has been raised in the material that he does not have sufficient assets and liabilities to make payment of costs already ordered, let alone any further costs which might be incurred by the prosecution of this appeal.
I am mindful of the fact that in May and June, when those matters were sworn and the appellant was making those submissions, he was still practising at least on a limited basis pursuant to an order from a single Judge of this Court pending appeal to the High Court. On 21 May 2013, the Full Court ordered that the defendant’s name be removed from the roll of practitioners and granted a short interim stay on the orders for 28 days to allow the appellant to apply to the High Court for a stay. However on 17 June 2013, Hayne J refused the application for a stay.[12] On 3 December 2013 the High Court dismissed the appeals on the papers.[13]
[12] Viscariello v Legal Practitioners Conduct Board [2013] HCATrans 149 (17 June 2013).
[13] John Viscariello v Legal Practitioners Conduct Board [2013] HCASL 188 (3 December 2013).
The appellant therefore is now struck off, unable to practise as a solicitor and is, in all relevant respects, in a worse position than he was at the time when he made those submissions in May and June 2013.
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.
The Appellant’s Chances of Success on Appeal
The respondents contended that the appellant’s chances of success on the appeal are slim. Counsel for the first respondent drew attention to the reasons of White J in Sands[14] where his Honour considered the limits on an appellant seeking vindication without prospect of the defendants recovering costs in the event the appeal fails. White J observed:[15]
I agree with counsel for the State that the circumstance that the appellant has had access to this Court in a related matter at great unrecompensed expense to the defendants in that action is a significant matter going to the establishment of special circumstances in the present case. There are limits to the extent to which the appellant should be permitted to pursue vindication of his position without defendants having any prospect of recovering their costs in the event that his claims fail.
In relation to his Honour’s conclusion concerning the prospects of success on appeal, counsel drew attention to the following conclusion of White J:[16]
In my opinion, given the length and detail of the Judge’s reasons it is unrealistic for the Court presently to attempt some evaluation of the appellant’s prospects of success. …
The respondents sought to draw a distinction between that matter and these proceedings on the basis that this is the second appeal that the appellant is seeking to pursue and that the reasons of the single Judge on appeal essentially address the question of law. The respondents acknowledged that there are cases where it can be difficult to say that an appeal will have no prospects of success, but that this is a matter where the Court can at least say there are very limited prospects of success.
[14] Sands v State of South Australia [2013] SASC 105.
[15] Sands v State of South Australia [2013] SASC 105, [14].
[16] Sands v State of South Australia [2013] SASC 105, [21].
The appellant disputed the respondents’ assertions concerning the prospects of success on appeal. The appellant argued that the merits of this appeal, that is, the question of statutory interpretation, cannot be simply judged without a proper hearing.
In this matter, it is important to consider the Judge’s approach to the question of statutory interpretation and his Honour’s treatment of the Tribunal’s conclusion. With regard to the Judge’s conclusion on the interpretation of section 82 of the Legal Practitioners Act 1981 (SA), his Honour concluded:[17]
In my opinion, subs (2)(d) can be understood as using a shorthand composite expression to vest standing in those persons who have a particular kind of relationship with the charged unprofessional or unsatisfactory conduct. Complainants will establish that relationship if they show that, on the hypothesis that the charged unprofessional or unsatisfactory conduct did occur, they are persons who, considered objectively, are really and directly affected by that conduct. If subs (2)(d) is understood in this way, meaning is given to all its words. Accordingly, complainants will not establish standing if their interest is no more than academic, emotional or of an intermeddling kind.
This meaning of subs (2)(d) gives effect to the subject, scope and purpose of s 82(2) and, in my opinion, is consistent with the authorities to which I have referred. Accordingly, I consider that the Tribunal was correct to regard the expression “a person claiming to be aggrieved” as having the same meaning as “a person aggrieved” and to regard it as requiring the appellant to show that, objectively considered, he was a person really and directly affected by the conduct which he sought to charge against the respondents.
[17] Viscariello v Livesey & Anor [2013] SASC 99, [63]-[64].
After concluding on the correctness of the Tribunal’s interpretation of the expression “a person claiming to be aggrieved”, the Judge turned to address what he described as the three bases upon which the appellant claimed to be a person really and directly affected by the conduct which he alleged against the respondents, and that the Tribunal had been wrong to find to the contrary. The three bases were:
-the appellant’s claim that he had a “direct personal grievance” arising from his status as a creditor of Bernsteen and Newmore, and as a secured creditor in the case of the latter;
-the appellant’s contention that he was “really and directly” affected by the alleged unprofessional conduct as these costs would not have been incurred had the alleged unprofessional conduct not occurred due to his interest as solicitor of Ms Hamilton‑Smith; and
-the appellant’s contention that he had the “right”, as a legal practitioner and as an officer of this Court, to have the Tribunal “take up [his] complaint”.
The Judge held that the appellant’s claim for standing from his status as a creditor of Bernsteen and Newmore was not made out, in that respect concluding:[18]
In my opinion, the appellant’s claim for standing on the basis that he claimed to be really and directly affected in his capacity as a creditor in the liquidation of Bernsteen and Newmore was not made out. His status as a creditor of Bernsteen and Newmore did not indicate that he was affected really and directly by the impugned conduct.
[18] Viscariello v Livesey & Anor [2013] SASC 99, [79].

In relation to the appellant’s contention concerning his interest as solicitor of Ms Hamilton-Smith, his Honour upheld the Tribunal’s conclusion and observed:[19]
For these reasons, I uphold the Tribunal’s conclusion that the “losses” asserted by the appellant did not arise, really and directly, by reason of the respondents’ conduct. They were, in the language of the Tribunal, too remote.
[19] Viscariello v Livesey & Anor [2013] SASC 99, [99].
Finally, the Judge upheld the Tribunal’s finding on the third claim, observing:[20]
I agree with the Tribunal’s reasons. Of course, practitioners generally should be concerned to ensure that proper standards of professional conduct are upheld. The reputation of, and confidence in, the legal profession and the administration of justice generally may be diminished by reason of the unprofessional or unsatisfactory conduct of one member. However, those matters cannot of themselves mean that any legal practitioner will satisfy the requirement for standing contained in subs (2)(d). They do not give rise to the kind of real and direct interest required by subs (2)(d). Section 82(2)(d) should not be understood as indicating that all practitioners, by virtue of their status as legal practitioners and their common responsibility to uphold appropriate standards of conduct, can be regarded as persons really and directly affected by the unprofessional conduct of another. The standing of a legal practitioner to lay charges before the Tribunal must be assessed in the same way as in the case of any other complainant.
I consider that the Tribunal was correct in rejecting this basis of the appellant’s claim to have standing to bring the charges.
[20] Viscariello v Livesey & Anor [2013] SASC 99, [103]-[104].
In effect, the Judge 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. It is often convenient in any application seeking the leave or permission of the Court to determine whether the matter has sufficient prospects of success. For the purposes of the applications for security, I conclude that the appellant does not have sufficient prospects of success.
Conclusion on Special Circumstances
I consider that the appellant’s impecuniosity and prospects of success as assessed amount to special circumstances. Therefore it follows that the discretion to award security has been enlivened.
Discretionary Considerations
In Sands, White J observed the following:[21]
As previously indicated, the matters bearing on the existence of special circumstances are also relevant to the exercise of the discretion. In addition to those matters, a number of other considerations are pertinent.
[21] Sands v State of South Australia [2013] SASC 105, [26].
In this matter, the appellant raised the ground of the public interest as a matter relevant to the exercise of my discretion whether to award security. The question of stultification of the appeal was also raised.
Matter of Public Interest
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.
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:[22]
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.
[22] Sands v State of South Australia [2013] SASC 105, [43].
Stultification of the Appeal
It is a matter for the appellant to provide evidence capable of demonstrating the potential for stultification.[23] The respondents submitted that as the appellant is represented by the law firm in which he practiced prior to being struck off the roll, in the absence of evidence to the contrary it is open to infer that the ordering of security for costs would not stultify the appellant’s conduct of the appeal. The respondents emphasised that the appellant has experience before this Court and would be entitled to appear as a self-represented litigant on appeal in the event that his former law firm refused to continue to act in the absence of payment of fees.
[23] See Sands v State of South Australia [2013] SASC 105, [41].
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.
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.
Conclusion on Exercise of Discretion
In my view, the circumstances of this case point to an order for security.
The first respondent initially sought security in the sum of $27,720.00. This figure was raised to $35,000.00 at the second hearing of the applications before me. The second respondent initially sought security in the sum of $20,760.00. It was similarly intimated that a percentage increase to this figure would be sought.
The increase of the quantum sought in each case was explained by the respondents’ concern at the volume of written submissions and material filed by the appellant already and the approach taken by the appellant thus far. I consider there is some justification for the respondents’ concern. Where a party chooses to file voluminous amounts of material either in the form of affidavit material or written submissions, even if it is later ascertained that much of it is peripheral at best or irrelevant at worst, the necessary process of analysing and sifting through that material must be gone through. So that is a factor which I have taken into account when determining what an appropriate amount by way of security should be.
I consider in all of the circumstances that the appellant should provide security in the sum of $40,000.00.
Application for Procedural Directions
I refer briefly to the respondents’ applications for directions concerning the content of the appeal books and to the application foreshadowed by the appellant to adduce further evidence on appeal and the conduct of the appeal generally. It is apparent from the submissions made by both parties that further directions in due course will be required. In my view, those matters should properly be dealt with by a Judge of this Court.
Conclusion
For these reasons I decline to recuse myself from these proceedings. I refuse the applications that the appeal be dismissed. I allow the applications for security and order that the further prosecution of the appeal be stayed until the appellant has paid into the Court the sum of $40,000.00 to secure the respondents’ costs of the appeal. The questions of procedure, including the resolution of the dispute concerning the appeal books, are to be dealt with by a Judge of this Court. I will hear the parties as to any further orders including the costs of these applications.