Viscariello v Livesey & Anor

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.