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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] SASC 198
Decision Date

CaseChat Overview and Summary

The case of Viscariello v Livesey & Anor involved an appeal against the dismissal of charges of unprofessional conduct laid by the appellant, John Viscariello, against the respondents, Mark Livesey QC and Tyneil Flaherty, before the Legal Practitioners Disciplinary Tribunal. The Tribunal dismissed the charges on the basis that the appellant lacked standing to bring them. The appellant appealed to the Supreme Court of South Australia, which dismissed the appeal on 27 June 2013, ordering the appellant to pay the respondents' costs of the appeal. The appellant subsequently appealed to the Full Court on 18 July 2013, prompting the respondents to file applications seeking the dismissal of the appeal or, in the alternative, an order for security for costs. The appellant also sought an order that the judge recuse themselves or that the applications be referred to the Full Court.

The central legal issues in this case were whether the appeal had sufficient prospects of success to warrant security for costs, and whether special circumstances existed under Rule 296(1)(g) of the Supreme Court Rules 2006 (SA) to justify such an order. The court examined whether the appellant's impecuniosity and the lack of success prospects constituted special circumstances and whether the public interest or the risk of stultification of the appeal should influence the decision on security for costs. The respondents argued that the appellant's impecuniosity and the lack of success prospects warranted the order, while the appellant contended that the public interest in maintaining the integrity of the legal profession should preclude such an order.

The court concluded that the appellant's impecuniosity and lack of success prospects did indeed constitute special circumstances, thereby enlivening the discretion to order security for costs. The court rejected the appellant's argument that the public interest in the proceedings should preclude the order, referencing the observations of White J in Sands v State of South Australia, which held that the private nature of the litigation did not preclude an order for security. Additionally, the court found that the appellant had not provided sufficient evidence to demonstrate that the ordering of security would stultify the appeal, as the respondents argued that the appellant's experience and the availability of alternative representation would mitigate any such risk.

The court ultimately ruled that the discretion to award security for costs was properly exercised in this case. The appeal was dismissed, and the appellant was ordered to pay the respondents' costs of the appeal, including the costs of the interlocutory applications.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KELLY J

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].

Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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].