Viscariello v Macks

[2011] SASCFC 83

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

VISCARIELLO v MACKS

[2011] SASCFC 83

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Kourakis and The Honourable Justice Peek)

10 August 2011

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - INTERLOCUTORY ORDERS AND JUDGMENTS

PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GROUNDS FOR RESISTING PRODUCTION - LEGAL PROFESSIONAL PRIVILEGE

Application for permission to appeal in private – whether a Judge of the Supreme Court of South Australia erred in refusing the applicant’s application for disclosure of certain documents – the respondent had claimed legal professional privilege over the documents – the application for permission to appeal was substantially out of time – extension of time refused – no arguable error identified to permit an appeal against the interlocutory order of the Judge – application refused.

VISCARIELLO v MACKS
[2011] SASCFC 83

Full Court:  Doyle CJ, Kourakis and Peek JJ

1. THE COURT:          Mr Viscariello applies for permission to appeal against orders made by a Judge of this Court.  Permission to appeal is required because the orders are interlocutory orders. 

2. The orders were made in an action in which Mr Viscariello was plaintiff.  He claims that the defendant Mr Macks, as liquidator of certain companies, improperly expended funds of the companies to fund civil litigation against Ms H S.  He claims that the litigation had nothing to do with the affairs of the companies in question, and that accordingly the expenditure was unlawful and an abuse of Mr Macks’ office as liquidator.  The firm of Minter Ellison acted as solicitors for the plaintiff in the action against Ms H S.  Mr Macks does not deny having provided certain funds for the purposes of the litigation.  He has pleaded that in doing so he acted on advice from Minter Ellison.  He denies any wrongdoing.

3. Mr Viscariello applied for discovery of certain documents.  Their existence was disclosed in attachments to accounts rendered by Minter Ellison and said to contain communications between Minter Ellison and Mr Macks, and relating to the action against Ms H S.  The documents were by and large solicitor’s file notes and emails.  A claim of legal professional privilege was made by Mr Macks in respect of those documents.  Mr Viscariello also applied for inspection of documents which had been discovered but over which Mr Macks claimed legal professional privilege.  The documents are by and large described as emails and faxes to Mr Macks’ firm, file notes, research files and briefs to counsel. The documents are voluminous. 

4. A single Judge refused the application for discovery or inspection, as the case may be, on the grounds of legal professional privilege.  Mr Viscariello argued that as the use of the funds was improper or a fraud, a claim for privilege could not be maintained.  The Judge rejected that submission.  It appears that the Judge also refused the orders sought on the ground that to grant them would involve examination of voluminous documents to identify those to which Mr Viscariello could properly claim access if any.  The Judge considered that the substantial cost involved could not be justified, bearing in mind that the documents appeared to be privileged documents.  It appears that at this stage the claim that privilege could not be maintained is based on nothing more than an admission by Mr Macks that he did fund the litigation in question.  It should also be noted that it remains open to Mr Viscariello to pursue the issue of access to the documents in question at the trial, when it may be possible to handle that issue in a more satisfactory manner. 

5. The Judge made his decision in the course of the application being made to him.  That application resulted in a transcript of about 100 pages.  Mr Viscariello has not identified particular passages in the transcript in which he claims that an arguable error appears.  He has simply repeated or put, in fairly general terms, the argument for discovery or inspection, without grappling with the detail of it, and in particular without demonstrating arguable error on the part of the Judge.  In short, he has not identified arguable errors that warrant the grant of permission to appeal.  It is not the function of the Court to comb through the transcript to see whether any such arguable errors can be found. 

6. The Court is cautious about granting permission to appeal in respect of interlocutory orders made in the course of pre-trial management of civil cases.  The claim to access can be renewed at trial.  No arguable error has been demonstrated.

7. As well, the application for permission is substantially out of time.  Mr Viscariello’s explanation for the delay does not adequately explain the full extent of the delay.  As the application for permission to appeal lacks merit, it is appropriate to refuse to extend the time within which Mr Viscariello can apply for permission to appeal against the orders made on 19 November 2010. 

8. Mr Viscariello also applies for permission to appeal against a consequential costs order made on 9 February 2011.  No arguable error is demonstrated.  In fact, no error at all is identified.  Accordingly, permission to appeal against the order for costs made on 9 February 2011 should be refused. 

9. For these reasons the Court orders that an extension of time within which to apply for permission to appeal against the orders made on 19 November 2010 be refused, and that permission to appeal against the order for costs made on 9 February 2011 be refused.