Viscariello v Livesey & Anor

The Full Court of the Supreme Court of South Australia considered an appeal by Mr Viscariello against an order made by Kelly J. The dispute concerned an application for security for costs in relation to an appeal that Mr Viscariello intended to bring.

The legal issues before the Full Court were whether Kelly J erred in her assessment of the risk of Mr Viscariello being impecunious and unable to pay the costs of the appeal, and whether her Honour was justified in ordering security for costs on that basis. The court also considered whether Mr Viscariello's prospects of success on the substantive appeal were sufficiently poor to warrant such an order.

The Full Court found that Mr Viscariello's own statements regarding the substantial costs of his numerous ongoing litigations, including an estimate exceeding $2.5 million for one matter alone, raised a real risk of impecuniosity. The court noted that Mr Viscariello declined to provide information about his net worth or ability to satisfy a costs order, which strengthened the inference of a high risk of impecuniosity. The court held that Kelly J was justified in drawing this inference and that her Honour's conclusion that Mr Viscariello was impecunious and unable to pay the respondents' costs was not demonstrably wrong. The court also considered Mr Viscariello's submission that his appeal was too complex to assess prospects of success at that stage.

The Full Court dismissed the appeal, upholding the order made by Kelly J.