FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Viscariello v Najjar [2022] FedCFamC2G 146
File number(s): ADG 378 of 2020 Judgment of: JUDGE BROWN Date of judgment: 17 March 2022 Catchwords: BANKRUPTCY – PRACTICE AND PROCEDURE – application under the Personal Properties Securities Act 2009 (Cth) – deed of settlement between former directors of a company – where both practitioners have lost their entitlement to practice the profession of the law – previous charges relating to dishonesty – where one of the previous directors are in prison – where company went into liquidation – where proceedings have occurred in the Supreme Court of South Australia – considerations of the purpose of pleadings and evidence by affidavit material – matters to be considered. Legislation: Fair Work Act 2009 (Cth).
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Pt 7, Div 16.2, rr 1.04, 1.06, 7.01, 16.11.
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 5, 143, 174, 190.
Federal Circuit Court Rules 2001 (Cth) r 4.05.
Federal Court of Australia Act 1976 (Cth) s 5.
Federal Court Rules 2011 (Cth) Div 16.5, r 8.05.
Personal Property Securities Act 2009 (Cth).Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
Bruce v Odhams Press Ltd [1936] 1 KB 697.
Hearne v Street (2008) 235 CLR 125.
Kalayzich v Santa Sabina College & Anor [2020] FCCA 11.
Kelly v Atanaskovic Hartnell Corporate Services Pty Ltd [2021] FCCA 552.
PPG Developments v Capitanio (2016) 126 SASR 307.
Roberts‑Smith v Fairfax Media Publications Pty Limited (No 5) [2020] FCA 1067.
Takemoto v Moody’s Investors Service Pty Limited [2014] FCA 1081.Division: Division 2 General Federal Law Number of paragraphs: 82 Date of hearing: 13 December 2021 Place: Adelaide Counsel for the Applicant: Mr Doyle SC Solicitor for the Applicant: Gretsas & Associates Counsel for the Respondent: Mr McCarthy Solicitor for the Respondent: Wadlow Solicitors ORDERS
ADG 378 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JOHN VISCARIELLO
Applicant
AND: WALID NAJJAR
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
17 MARCH 2022
THE COURT ORDERS THAT:
In relation to the applicant’s application in a case filed 12 July 2021:
1.The applicant, John Viscariello (“the applicant”) is granted leave to amend the final orders and relief sought in his application filed on 11 December 2020 on or before 1 April 2022.
In relation to the respondent’s application in a case filed 23 August 2021:
2.Paragraph (1) of the orders made by Judge Brown on 7 July 2021 be varied to grant the solicitor for the respondent, Walid Najjar (“the respondent”), leave to uplift and copy any and all documents produced pursuant to the subpoena to the Law Society of South Australia NOTING THAT such inspection of the documents held by the Law Society of South Australia is to be completed before 7 April 2022.
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- AGLC
- Viscariello v Najjar [2022] FedCFamC2G 146
- Case
- [2022] FedCFamC2G 146
- Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, the case of Viscariello v Najjar involved a dispute between the plaintiff, Viscariello, and the defendant, Najjar. The primary issue was the proposed amendment to the plaintiff's statement of claim to broaden the financial scope of his claim against the defendant. The plaintiff sought to include additional legal fees he alleged were due from the defendant, as a result of a prior partnership deed with another party, McNamara. The defendant opposed the amendment on the grounds that it was prejudicial and came at a late stage in the proceedings.
The court had to determine whether to allow the amendment under the Federal Court Rules and whether such an amendment would prejudice the defendant. The court noted that the amendment was being sought at an early stage of the proceedings, before the case was set down for trial, and did not imply any prejudice to other litigants. The court also observed that the proposed amendment was significant to the plaintiff, as it substantially increased the financial claims against the defendant. The court considered the defendant's argument that the amendment would not prejudice him, as it aligned with the original claim that the plaintiff was entitled to certain legal fees. Moreover, the court recognised that the Federal Court Rules permit amendments without leave and that the case was likely to proceed through affidavit evidence rather than traditional pleadings.
The court concluded that the amendment was not clearly untenable or fanciful and therefore did not warrant disallowance. The court noted that the defendant could still challenge the merits of the claim through a summary dismissal application if he believed the claim had no reasonable prospects of success. Considering the importance of the subpoenaed documents from the Law Society in resolving the dispute, the court allowed the amendment to proceed. This decision enabled the case to progress in a manner that the court deemed most efficient, given the nature of the evidence and the stage of the proceedings.
The court had to determine whether to allow the amendment under the Federal Court Rules and whether such an amendment would prejudice the defendant. The court noted that the amendment was being sought at an early stage of the proceedings, before the case was set down for trial, and did not imply any prejudice to other litigants. The court also observed that the proposed amendment was significant to the plaintiff, as it substantially increased the financial claims against the defendant. The court considered the defendant's argument that the amendment would not prejudice him, as it aligned with the original claim that the plaintiff was entitled to certain legal fees. Moreover, the court recognised that the Federal Court Rules permit amendments without leave and that the case was likely to proceed through affidavit evidence rather than traditional pleadings.
The court concluded that the amendment was not clearly untenable or fanciful and therefore did not warrant disallowance. The court noted that the defendant could still challenge the merits of the claim through a summary dismissal application if he believed the claim had no reasonable prospects of success. Considering the importance of the subpoenaed documents from the Law Society in resolving the dispute, the court allowed the amendment to proceed. This decision enabled the case to progress in a manner that the court deemed most efficient, given the nature of the evidence and the stage of the proceedings.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Accordingly, the respondent’s solicitor would be bound by this implied undertaking not to do or permit anything unorthodox, to use a neutral expression, in respect of any documents inspected by him. In my view, this implied undertaking, when coupled with the professional obligations attached to all legal practitioners, is the greatest safeguard to the integrity of the documents in question.CONCLUSIONS The application to amend comes at an early stage of proceedings, and prior to the case being set down for trial. As such, it has no implications for the court’s capacity to manage the flow of cases coming before it or to cause prejudice to other litigants. I accept that the proposed amendment is likely to be significant to Mr Visciarello, as it greatly broadens the financial ambit of his claim against Mr Najjar. I do not consider that the amendment, of itself, causes any prejudice to Mr Najjar as it is on fours with the original aspect of Mr Visciarello’s claim that, as a consequence of the PPS deed between him and Mr McNamara, he is entitled to claim legal fees alleged to be due to Commercial & General Law. More significantly, the relevant Division 2 rules allow amendment without leave. In addition, this is a court which has a limited use of pleadings and, in the current proceedings, each party has elected to utilise affidavit material to a significant degree. It seems to me that the most efficient way of the case been managed, is if it proceeds by way of the filing of affidavits of evidence. At this stage, the respondent has been able, to a significant degree, outline his view that Mr Visciarello’s application is incapable of being sustained given the lack of professional relationship between him and the applicant and the fact that even if there were any fees outstanding by him, they would be due to the liquidator of Commercial & General Law. However, in my view, in determining whether to exercise a discretion to disallow an amendment given the court’s inherent jurisdiction to manage the litigation before it, the court is precluded from considering the overall merits of the application concerned, unless the amendment concerned is clearly untenable or fanciful. I do not consider that the proposed amendments satisfy these descriptors. In any event, it is open to the respondent to bring an application for summary dismissal of the claim against him pursuant to the provisions of section 143 of the FCFCOA Act on the basis that it has no reasonable prospects of being successfully prosecuted. In all these circumstances I propose to allow the amendment proposed by the applicant. Clearly, the respondent has a legitimate forensic interest in the various documents which have been subpoenaed from the Law Society, as indeed does the applicant. It seems probable that these records will be central in the resolution of the issue of how the monies currently subject to the court’s control should be directed. In these circumstances, in order to advance the case it will be necessary for Mr Najjar’s solicitor to inspect the voluminous records.
Ratio Decidendi
Legal Principle Established
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