Viscariello v Tamasauskas - [2021] SASCA 49

Supreme Court of South Australia
(Court of Appeal: Civil)
VISCARIELLO v TAMASAUSKAS
[2021] SASCA 49
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice Lovell and the Honourable Justice Bleby)
1 June 2021

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - LEAVE TO APPEAL
The applicant, Mr Viscariello, applies for permission to appeal to the Full Court against three decisions of Doyle J. His Honour’s decisions relate to, and address, inter alia, an appeal by Mr Viscariello against a decision of a judge of the District Court to grant a stay on proceedings in that court pending the outcome of substantive litigation in which Mr Viscariello was a party.
Mr Viscariello also appeals against a decision of David AJ refusing permission to appeal against a decision of a judge of the District Court to grant the respondent permission to amend her pleadings prior to trial.
Held by the Court, refusing permission to appeal:
In respect of Viscariello v Tamasauskas [2018] SASC 111:
1.The Judge’s reasons disclose no discernible error. There is no utility in the appeal, the appropriate relief is to apply to the District Court to have the stay lifted. Permission to appeal is refused.

In respect of Viscariello v Tamasauskas (No 2) [2019] SASC 40:
2.The Judge’s reasons disclose no discernible error. A fair minded lay observer would not apprehend bias on the part of the Judge. The appeal would enjoy no prospect of success. Permission to appeal is refused.

In respect of Viscariello v Tamasauskas (No 3) [2019] SASC 79:
3.The Judge’s reasons disclose no discernible error. Further, there is no utility in the appeal. The only issue which could be effected is a question of costs. Permission to appeal should not be granted on interlocutory orders of no utility where the only practical purpose served by the appeal is to review a decision on costs. Permission to appeal is refused.

In respect of the decision of Viscariello v Tamasauskas [2020] SASC 31:
4.The amendment of pleadings to further particularise issues in dispute prior to trial cannot be equated with the late initiation of proceedings. The critical question is whether the balance of the respective interests of the parties in ensuring that all aspects of the justiciable controversy are litigated and resolved favours granting or refusing the amendment.
5.The Judge’s decision to allow the amendment to the respondent’s pleadings raises no new issues. Further particularisation could not cause Mr Viscariello any prejudice. In any event, there is no utility in the appeal. Permission to appeal is refused.

Supreme Court Act 1935 (SA) s 50(5)(c); Supreme Court Civil Rules 2006 (SA) ss 242, 288, 289, 290, 291, referred to.
Viscariello v Tamasauskas [2018] SASC 111; Viscariello v Tamasauskas (No 2) [2019] SASC 40; Viscariello v Tamasauskas (No 3) [2019] SASC 79; Viscariello v Tamasauskas [2020] SASC 31, discussed.
Rouse v IOOF Australia Ltd (No 2) [1999] SASC 205; Manos v Maras [2007] SASC 192; Kowalski v R J Cole & Partners (2015) 122 SASR 320; IOOF Aust Trustees Ltd v SEAS Sapfor Forests Pty Ltd (1999) 78 SASR 151; Attorney-General (NT) v Director of Public Prosecutions (2013) 166 NTR 1; Smits v Roach (2006) 227 CLR 423; Clone Pty Ltd v Players Pty Ltd (2018) 92 ALJR 399; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Keung v Abbott (No 2) [2019] SASCFC 39, considered.

VISCARIELLO v TAMASAUSKAS
[2021] SASCA 49

Court of Appeal: Kourakis CJ, Lovell and Bleby JJA

THE COURT: This an application for permission to appeal against orders made by Doyle J in:
·Viscariello v Tamasauskas as Administrator of the Estate of Andrew Patrick Phillips (Deceased) [2018] SASC 111 (Viscariello (No 1));
·Viscariello v Tamasauskas (No 2) [2019] SASC 40 (Viscariello (No 2)); and
·Viscariello v Tamasauskas (No 3) [2019] SASC 79 (Viscariello (No 3)).
Mr Viscariello also seeks permission to appeal against the decision of David AJ in Viscariello v Tamasauskas [2020] SASC 31.
Doyle J refused permission to appeal in Viscariello (No 1) on 7 August 2018; in Viscariello (No 2) on 21 March 2019 and in Viscariello (No 3) on 15 May 2019. Mr Viscariello has renewed those applications. Due to the nature of David AJ’s auxiliary appointment, the application for permission to appeal his Honour’s decision came before the Chief Justice for determination. On 18 May 2021, the Chief Justice constituted this Court to determine all of the renewed applications.
Permission to Appeal: Judgments of Doyle J
In Viscariello (No 1),[1] Doyle J heard an appeal against a temporary stay of proceedings granted to the respondent in a District Court action. Ms Tamasauskas is the administrator of the deceased estate of Mr Phillips (the Administrator). Mr Phillips was a Victorian barrister who had appeared as counsel for Mr Viscariello in complex litigation against a liquidator, Mr Macks. Mr Phillips passed away after the conclusion of the trial in the Macks litigation but before the hearing of an appeal and cross-appeal brought against the orders of the trial Judge (the Macks appeal). Mr Viscariello claimed damages for breaches by Mr Phillips of his retainer, including his failure to complete that retainer by conducting the appeal.
[1] [2019] SASC 111.
By his statement of claim, Mr Viscariello alleged that Mr Phillips breached his contract of retainer by committing suicide, and that as a result he suffered losses including the wasted fees charged by Mr Phillips and the expense of engaging different counsel for the appeal. He also claimed losses flowing from the adverse outcome of the Macks appeal, which he claims would have been avoided if Mr Phillips had appeared as his counsel on the appeal. In her defence, the Administrator denied liability on grounds including that Mr Phillips did not owe, or alternatively breach, the alleged obligations or duty. The defence also denied that Mr Viscariello suffered any loss or damage and put in issue the extent of any loss, including the claim for costs thrown away.
On 11 November 2016, the Administrator applied for a stay of Mr Viscariello’s District Court action pending the hearing and determination of the Macks appeal. The stay was heard by a Master of the District Court on 11 August 2017 and 5 September 2017. At that time, the judgment of the Full Court on the Macks appeal was reserved.
Mr Viscariello appealed from the Master’s decision. The appeal was heard by a Judge of the District Court (the Judge), who reserved her decision on 14 December 2017.
On 22 December 2017, the Full Court delivered its judgment on the Macks appeal. Notwithstanding the delivery of the judgment, the parties asked the Judge to proceed to determine the District Court appeal. On 6 April 2018, the Judge dismissed Mr Viscariello’s appeal against the stay.
Mr Viscariello brought an appeal against the decision of the Judge in this Court claiming that the appeal lay as of right. Mr Viscariello contended that even though the stay was interlocutory, it was relief in the nature of an injunction, and that therefore permission was not required by reason of s 50(5)(c) of the Supreme Court Act1935 (SA).
In Viscariello (No 1),[2] relying on a series of decisions in this Court, including Rouse v IOOF Australia Ltd (No 2),[3] Manos v Maras,[4] and Kowalski v Cole & Partners,[5] Doyle J held that the decision was interlocutory. Doyle J then refused permission because, by virtue of the Full Court decision having been handed down, Mr Viscariello’s remedy was to apply in the District Court to have the stay lifted.[6]
[89]In my view, Mr Viscariello has not established that he would incur any substantial prejudice in the event that permission to appeal was refused. He is entitled to apply to have the stay lifted, and as the rationale for the stay was the need to await the outcome of the appeal that has now been determined, it would seem that Mr Viscariello will likely be successful in having the stay lifted. Indeed, that appears to be virtually certain now that the defendant has indicated that there will be no opposition to the stay being lifted. While this position was apparently only first made clear during submissions before me, I regard it as little more than a recognition of the obvious.
[90]In my view, there is no good reason for Mr Viscariello to have pursued this appeal. His decision to do so appears to reflect a somewhat obstinate attitude to the conduct of the litigation, rather than an attempt to avoid any identifiable prejudice that could not otherwise be avoided by applying to have the stay lifted.
[91]I do not regard the costs order made below as relevant prejudice. Such prejudice would likely exist in the case of most applications for permission to appeal. Any assertion of prejudice on account of costs was in any event only made in very general terms by Mr Viscariello. He did not support his reference to the costs implications of the order below with any evidence as to their likely quantum or impact upon him.
[2] [2018] SASC 111.
[3] [1999] SASC 205.
[4] [2007] SASC 192.
[5] (2015) 122 SASR 320.
[6] [2018] SASC 111 at [89]-[91].
In Viscariello (No 2),[7] Doyle J heard an application to set aside his Honour’s earlier order refusing permission to appeal. That application was brought on the ground that Doyle J ought to have recused himself for three reasons. The first was that his Honour’s sister was a principal at the firm representing the Administrator, although she was not engaged in any way in the litigation between Mr Viscariello and the Administrator. Doyle J dismissed that ground for the following reasons:[8]
[83]There is no suggestion, or basis in the evidence, to think that Iles Selley has any direct financial interest in the outcome of the District Court proceedings, let alone the appeal that I heard. There is no reason to think that whether Iles Selley will recover its fees, for example, will be influenced by the outcome of the proceedings, let alone the appeal. Indeed, given that Iles Selley is being instructed by the statutory insurer of the Victorian legal profession, it seems reasonable to assume they will be paid regardless of the outcome. A fortiori there is no suggestion, or basis in the evidence, to think that Ms Doyle has any direct financial interest in the outcome of the proceedings or the appeal. In this respect, the present application for disqualification is weaker than the unsuccessful one in Smits v Roach, where the outcome of the proceedings at least had the potential to affect the financial interests of Freehills and thus the Judge’s sibling.
[84]It may be accepted that the barrister and solicitor with the conduct of a particular matter have something of a professional interest in the outcome of that matter. The barrister or solicitor will generally prefer to ‘win’ rather than ‘lose’ the matters in which they are involved. And, depending very much upon the nature and importance of the matter, it may be that the outcome will have the potential to affect their professional standing in some way amongst their professional colleagues and in the eyes of their clients and potential clients. It may in some cases affect their prospects of securing future work. It is reasoning along these lines – and perhaps also an apprehension that a judge might tend to identify the interests of a barrister or solicitor involved in a particular matter with the interests of their client[9] – that generally warrants disqualification in the case of a sibling with direct involvement in the conduct of a particular matter.
[85]Similar reasoning might be extended to other members of the firm to which the solicitor with the conduct of the matter belongs. However, it seems to me that the strength or intensity of the professional interest becomes diluted once one moves from the individual to the firm, and then to other individuals within that firm.[10] It is this dilution that is reflected in the differing treatment of such situations in the passage from the Guide extracted above.
[86]I accept that the extent of the dilution might be affected by the size of the firm (and hence be less in the case of a mid-sized or specialist firm such as Iles Selley). However, the extent of that dilution will also be affected by the nature and importance of the particular matter. In this case, the matter I was to hear was not a large scale or high profile matter. It was an appeal in respect of a temporary stay in District Court proceedings with a modest value. It stands in stark contrast with the “huge claim that had already attracted unwelcome publicity” in Smits v Roach.[11]While no doubt important in the parties’ minds, it is difficult to see how the outcome of the hearing before me could have materially impacted Iles Selley, let alone Ms Doyle.
[87]In the circumstances, I am not satisfied that there is a sufficient logical connection between my familial association with Ms Doyle, and my apprehended ability to bring an impartial mind to bear in the appeal that I heard (let alone the question of costs consequential upon dismissal of that appeal), to conclude that there was a reasonable apprehension of bias. To the extent there is a connection at all, I do not think it is one that a lay observer would regard as a cogent and rational link with the capacity to influence my decision making. Any such connection is simply too indirect, tenuous or remote to reasonably attribute that capacity.
(Footnotes in original)
[7] [2019] SASC 40.
[8] [2019] SASC 40.
[9] cf IOOF Aust Trustees Ltd v SEAS Sapfor Forests Pty Ltd (1999) 78 SASR 151 at [195], where it was said that the lay observer would understand that the judge was trained to, and would, differentiate between counsel and their client rather than identify counsel with their client.
[10] See the discussion in Attorney-General (NT) v Director of Public Prosecutions (2013) 166 NTR 1 at [24]-[31], [35]-[41].
[11] Smits v Roach (2006) 227 CLR 423 at [115].
There is no discernible error in those reasons.
Next, Mr Viscariello relied on the circumstance that Iles Selley had acted for Mr Macks but not in the litigation which culminated in the Full Court appeal. Doyle J dismissed that ground because there was no basis on which to apprehend bias on his Honour’s part because of the conduct of Iles Selley:[12]
[99]Even if it be accepted that Mr Iles ought not to have been acting for the defendant in these proceedings, I do not understand how that might contribute to a feared deviation on my part from an impartial determination of the appeal. It may be accepted that there is a degree of antipathy on the part of Mr Viscariello towards Mr Iles and Mr Selley, and (while I do not assume this to be so) it may be that this is to some extent reciprocated. But there is no reason to attribute any such antipathy towards Mr Viscariello to Ms Doyle, particularly in circumstances where the evidence is that she has had no involvement in, or discussions about, the District Court proceedings with Mr Iles.
[100]Further, and in any event, it is difficult to see how any of this bears on my association with Ms Doyle. There is no suggestion that I was aware of any of the matters in dispute between Mr Viscariello and Mr Iles and Mr Selley (let alone any follow-on consequence this might have had for Ms Doyle). But even if it be assumed that I knew of these matters (or would have learned of them if I had disclosed my association with Ms Doyle in a timely way), I do not think they would have materially contributed to any apprehension by a fair-minded lay observer that I might deviate from an impartial determination of the proceedings. Even if it were assumed that Ms Doyle had some antipathy to Mr Viscariello (which, for the reasons set out, I regard as a tenuous assumption) I do not think a lay observer would reasonably assume that I would share, or identify with, this antipathy or otherwise allow it to impair my judicial obligation to bring an impartial mind to bear on the appeal I heard.
[101]Turning to the third of these broader circumstances, namely Mr Doyle’s involvement in the Supreme Court appeal, as explained earlier, this was a matter known to Mr Viscariello at the time of the hearing before me. It follows that Mr Viscariello must be taken to have waived any objection to this matter as an independent ground for disqualification.
[12] [2019] SASC 40 at [99]-[101].
Again, there is no discernible error in his Honour’s reasons.
Finally, Mr Viscariello contended that the reasons for judgment of Doyle J in themselves provided a proper foundation for a reasonable apprehension of bias. Mr Viscariello says that because, inter alia, his Honour ‘went to some lengths’ to distinguish a judgment on which Mr Viscariello relied upon in support of his contention that the judgment against which he appealed was interlocutory, that Doyle J did not bring an impartial mind to the decision. Mr Viscariello, in support of his contention of apprehended bias, also complains of adverse observations by Doyle J about Mr Viscariello’s approach to the litigation. Doyle J dismissed that ground:[13]
[13] [2019] SASC 40 at [113]-[122].
[113]The first aspect of my reasons complained of by Mr Viscariello in this case is what he described as the inordinate lengths that I went to in order to distinguish the decision of the majority in Kowalski v R J Cole & Partners.[14] In their joint judgment in that case, Gray and Sulan JJ made some obiter observations to the effect that a permanent stay for an abuse of process was an order “in the nature of an injunction” for the purposes of s 50(5)(c) of the Supreme Court Act 1935 (SA), and hence did not require permission to appeal. It is true that a number of paragraphs of my reasons were occupied with a consideration of those obiter observations. Having referred to the views of Bampton J in the same case, as well as some other authorities and a passage from Meagher, Gummow & Lehane’s Equity – Doctrine & Remedies, which I considered supported a different view, I expressed some reservations about the correctness of their Honours’ observations. However, I said that I did not ultimately need to express a concluded view as to whether a permanent stay for an abuse of process was an order in the nature of an injunction; it was sufficient that I concluded that the temporary stay ordered by the District Court Master was not an order in the nature of an injunction.
[14] Kowalski v R J Cole & Partners (2015) 122 SASR 320.
[114]It is fair to say that I went to some lengths to distinguish the observations of the majority in Kowalski v R J Cole & Partners. But I do not accept that a reader of my reasons would reasonably think that I went to inordinate lengths to do so, or that I did so for some inappropriate reason. I do not think that a reading of my reasons in relation to this issue would give rise to any feeling of disquiet, or concern that I might lack impartiality. Rather, I consider that a fair-minded lay reader of my reasons would regard them as appropriately detailed and careful given the significance to the parties of the issue of whether or not the order in question was one which required permission to appeal. …
[115]The next aspect of my reasoning with which Mr Viscariello took issue was my observations that his decision to seek to appeal the temporary stay, rather than having it lifted by the Master, reflected a “somewhat obstinate attitude to the conduct of the litigation”,[15] and that he had not supported his reference to the costs implications of the Master’s decision to grant a stay with any evidence as to their likely quantum or impact upon him.[16] Mr Viscariello contended that the first of these observations was gratuitous, without notice and extraordinary (given that his grounds of appeal were arguable); and that the second was simply incorrect because it ignored the evidence about the additional costs Mr Viscariello had incurred in defending the Supreme Court appeal.
[116]I do not accept these contentions. They appear to be founded upon a misunderstanding of the relevant passage of my reasons. Having explained that permission to appeal from an interlocutory order required a consideration of not only the merits of the proposed appeal, but also whether there was a risk of substantial injustice were permission to be refused, the impugned passage of my reasons was addressing this second issue, and in particular whether Mr Viscariello would suffer any substantial injustice were permission to appeal be refused.
[117]It was directly relevant to that issue to consider what utility there was in the appeal; that is, the reason it was being pursued, and what prejudice (if any) Mr Viscariello might suffer if permission were refused. Given that the temporary stay which Mr Viscariello was seeking to appeal was likely to be lifted in any event, I was not satisfied that there was any practical utility in the appeal. It was not likely to achieve anything that could not be achieved in any event. It was in this context that I made the finding that the appeal was being pursued not so as to avoid some substantial injustice, but rather merely reflected an obstinate decision by Mr Viscariello to appeal because he considered he was entitled to do so. Far from being irrelevant or gratuitous, the finding was an aspect of my reasoning towards the conclusion that permission to appeal should be refused.
…
[119]Contrary to Mr Viscariello’s submissions on this application, the reference in my reasons to Mr Viscariello not having supported his reference to the costs implications of the Master’s decision to grant a stay with any evidence as to their likely quantum or impact upon him was not a reference to any additional costs he incurred in relation to the Supreme Court appeal. … But more importantly, once properly understood, I do not think that my reasoning in relation to this issue provides any basis for a reasonable apprehension of bias.
[120]Mr Viscariello complains that my reasons “conveniently” did not address his submissions about Mr Iles’ motivations and conduct in connection with the District Court proceedings. I did not mention this matter because I did not understand it to be a matter that was relevant, let alone necessary, to my determination of the issues that I was required to decide. I remain of that view. More importantly, I cannot see how my failure to address this issue would support any reasonable apprehension of bias.
[121]Finally, Mr Viscariello complains that my reasons (like the submissions of the defendant, and the reasons below of the Master and District Court Judge) relied upon the outcome of the Supreme Court appeal being significant to the District Court proceedings, without this significance being identified in the defence or in my reasons. I addressed this issue in my reasons. I commenced by summarising the reasoning of the Judge below on this issue.[17] I later returned to the issue, and upheld and adopted the Judge’s reasoning,[18] before explaining the potential significance of the outcome of the Supreme Court appeal in my own terms.[19] I also explained why, in my view, it was significant that the issue did not at this stage appear in the defence.[20]
[122]While I of course consider that my treatment of this issue was sound, once again that is not the issue. Even if I was wrong, that would not of itself be probative of, let alone establish, a reasonable apprehension of bias. It was never clearly articulated in submissions what it was about this passage of my reasoning that bespoke a lack of impartiality. There is nothing in the nature of my treatment of this issue that to my mind would give rise to, or even contribute to, a reasonable apprehension of bias.
(Footnotes in original)
[15] Viscariello v Tamasauskas [2018] SASC 111 at [90], as extracted earlier in [the reasons of Doyle J].
[16] Viscariello v Tamasauskas [2018] SASC 111 at [91], as extracted earlier in [the reasons of Doyle J].
[17] Viscariello v Tamasauskas [2018] SASC 111 at [43].
[18] Viscariello v Tamasauskas [2018] SASC 111 at [102].
[19] Viscariello v Tamasauskas [2018] SASC 111 at [106].
[20] Viscariello v Tamasauskas [2018] SASC 111 at [103]-[104].

The reasons of Doyle J correctly dispose of each complaint individually. Of greater importance is his Honour’s observation in the final paragraph just cited that an error of reasoning, even if strongly expressed, will seldom support a reasonable apprehension of bias. The reasons of Doyle J in Viscariello (No 2) are certainly not such a case. No arguable error has been demonstrated.
In Viscariello (No 3),[21] Mr Viscariello brought a further application pursuant to r 242 of the Supreme Court Civil Rules 2006 (SA) (the 2006 Rules) to set aside the first decision, based on what he contended was fresh evidence. The fresh evidence was that the decision of the Full Court on the Macks appeal did not in any way affect the course of the District Court litigation between Mr Viscariello and the Administrator after the stay was lifted in September 2018. Mr Viscariello filed a third statement of claim on 4 October 2018 and the Administrator a second defence on 18 October 2018. The second defence did not expressly plead anything arising out of the outcome of the Supreme Court appeal. Nor did the defendant’s list of documents include disclosure of any documents post‑dating the Supreme Court appeal. Mr Viscariello contended that the absence of anything in the Administrator’s second defence or disclosure demonstrated the falsity of the evidence given and submissions made on the hearing of the application before the Master, the appeal before Judge Bochner, and the appeal before Doyle J in Viscariello (No 2).[22] Mr Viscariello contended that the very existence of that further evidence was a proper ground on which to set aside the judgment in Viscariello (No 1).[23] Doyle J held that the existence of fresh evidence did not, in itself, enliven the power in r 242 of the 2006 Rules:
[21] [2019] SASC 79.
[22] [2019] SASC 40.
[23] [2018] SASC 111.
[20] I rely in this respect upon the observations made in my earlier reasons[24] in this matter, as to the caution that is appropriate, particularly in light of the High Court's affirmation of the importance of finality in litigation in Clone Pty Ltd v Players Pty Ltd.[25] I also rely upon the recent observations of Hinton J, with whose reasons Kourakis CJ and Kelly J agreed, in Keung v Abbott (No 2).[26]
…
[22] It is true that in Clone Pty Ltd v Players Pty Ltd the High Court left open the possibility of grounds other than fraud for setting aside a perfected judgment.[27] However, for the reasons set out in the passages referred to above from my earlier reasons in this matter, and Hinton J's reasons in Keung v Abbott (No 2), to the extent that other grounds exist, they are likely to be closely confined. While those grounds might extend to circumstances involving a fundamental misapprehension of the facts, the overlooking of a significant matter, or a failure to afford procedural fairness, I do not consider that mere satisfaction of the ordinary rules or principles governing the receipt of ‘fresh evidence’ on appeal will suffice.
…
[24]Here, the plaintiff's application was confined to circumstances said to satisfy the test for fresh evidence. While the plaintiff contended that the effect of the fresh evidence was to reveal that the court had been misled as to the true position, the plaintiff expressly eschewed any allegation of fraud or malpractice as a foundation for his application to set aside my earlier order.
…
[26]In my view, this is so even though, for the reasons I have previously given, I consider that the Master’s decision was an interlocutory one. It is true that many interlocutory decisions by their very nature are able to be revisited if circumstances change. However, this is not an application to reconsider the continuing appropriateness of the stay that was originally ordered. Such an application, indeed, could not be brought because the stay has been lifted. This is an application to set aside my refusal to grant permission to appeal from the original order granting a stay. In my view, that requires an application of the principles governing the operation of r 242(2).
(Footnotes in original)
[24] Viscariello v Tamasauskas (No 2) [2019] SASC 40 at [47]-[51].
[25] Clone Pty Ltd v Players Pty Ltd (2018) 92 ALJR 399. See also Aon Risk Services Australia Ltd v
[26] Keung v Abbott (No 2) [2019] SASCFC 39 at [32]-[36], [51]-[56].
[27] Clone Pty Ltd v Players Pty Ltd (2018) 92 ALJR 399 at [2].
There is no discernible error in those reasons.
In any event, to have any prospect of success, Mr Viscariello had to establish that on a proper exercise of the discretion granted (as at the relevant time) by r 242 of the 2006 Rules, the judgment should be set aside. Doyle J held that he would not have exercised his discretion to do so for the following reasons:
[31]The evidence and submissions of the defendant did not involve a statement of present fact capable of being falsified in the ordinary sense. Rather, they involved something of a prediction; or a statement by the defendant (through her solicitor) of her view or position as to the inherent capacity of the outcome of the Supreme Court appeal to affect the future course and conduct of the District Court proceedings. I accept the point made by Mr Viscariello in the course of his submissions this morning that at least on occasions the statements made on behalf of the defendant were put in fairly unequivocal or absolute terms, including that the outcome of the Supreme Court appeal “will affect” the District Court proceedings, rather than just that they were inherently likely to do so. But, in my view, that does not change the inherently predictive nature of the evidence and submissions relied upon, and the fact that they would have been understood as such. The mere fact that the outcome of the Supreme Court appeal has not in fact found express voice in the second defence filed by the defendant does not in my view relevantly undermine, let alone falsify, the validity of the views or position expressed by the defendant in the context of the stay hearing.
[32]By way of example, as the defendant points out in her submissions, the plaintiff was largely unsuccessful in the Supreme Court appeal. If, on the other hand, he had been largely successful and had obtained costs orders in his favour, then this would likely have reduced the value of the ‘wasted’ costs sought to be recovered in these proceedings. This reduction is a matter that might well have found voice in the second defence had there been an occasion for it. One can readily imagine other circumstances in which the outcome of the Supreme Court appeal might have affected the conduct and course of the District Court proceedings, and hence the defence of those proceedings.
[33]In short, I am not satisfied that evidence of the subsequent litigation events relied upon by the plaintiff constitutes ‘fresh evidence’ in the relevant sense. The evidence does not, in my view, impugn the appropriateness or the true import of the evidence and submissions relied upon by the defendant, or its acceptance by the Master. I do not think it can be said that the ‘fresh evidence’ would have had an important influence on the result of the stay application.
[34]Further, even if it could be said that knowledge of recent events might have influenced the Master’s approach, it would be somewhat artificial in my view to treat this as ‘fresh evidence’ justifying a re-hearing. By its very nature, the decision at the time was based upon a prediction or forecast as to the likely connection with and, significance of, the Supreme Court appeal. To now revisit that decision simply because we have the benefit of hindsight, would in my view be to ignore or distort the very nature of the Master's decision.
The reasons given by Doyle J for not exercising the power are plainly correct. The applications for permission to appeal against the decisions of Doyle J must therefore be refused because the grounds on which they are brought lack merit. Permission to appeal must also be refused because there is no utility in pursuing the appeal. There was no utility in the application for permission to appeal against the stay order made pending the determination of the Full Court appeal because, as Doyle J explained, Mr Viscariello’s remedy was to apply to have that stay lifted after the Full Court handed down its decision. There is even less utility in pursuing an appeal against the making of the stay order now. The merits of granting the stay may reasonably be debated, but it is not arguable that the grant of the stay was not within the Master’s discretion. Moreover, as we shortly shall see, steps have been taken in the District Court action after the Full Court handed down its decision on the Macks appeal.[28] The only live issue which could be effected by granting permission is the question of costs of the stay application in the District Court action, and the subsequent applications for permission to appeal, and to set aside the decisions of Doyle J. Permission to appeal against interlocutory orders of no utility should not be granted where the only practicable purpose served is to review where the costs burden of the interlocutory applications should fall.
[28] There being no utility in pursuing an appeal against the making of the stay order, there is even less reason to grant permission to appeal against Doyle J’s decisions in Viscariello (No 2) and Viscariello (No 3).
Permission to appeal: Judgment of David AJ
By application dated 18 March 2020, Mr Viscariello also seeks permission to appeal the decision of David AJ dismissing an appeal against the decision of a District Court Judge permitting the Administrator to file a third defence.
The District Court Judge’s ex tempore decision was given on 20 September 2019. The appeal before David AJ was heard on 6 December 2019. A trial of the proceedings had been set for February 2020. The proceedings were adjourned by consent subject to the outcome of the appeal to this Court against the permission to amend.
The amendment sought to be made by the Administrator was:
45. In answer to the allegations pleaded in paragraph 45 of the Claim, the Defendant:
45.1. repeats and relies upon paragraph 40 above;
45.2. repeats and relies upon paragraph 42 above and says further that:
45.2.1.Mr Phillips’ suicide was not a breach of his retainer or his duty of care to the Plaintiff;
45.2.2.Mr Phillips’ suicide was an involuntary act, in consequence of an underlying mental illness of anxiety and depression, which combined with events impaired his reality testing, judgement and behaviour;
45.2.3.Mr Phillips’ failure to appear on the appeal was not a breach of any duty, the contract of retainer having been frustrated by his suicide;
45.2.4.Mr Phillips was not obliged to continue to act for the Plaintiff as at 24 March 2016, and not in breach of any duty by taking his own life on that day, because:
a)his fees remained outstanding in breach of the terms of the 19 December 2014 Deed and thereby the costs agreement between them;
b)Mr Phillips could not reasonably determine that his fees referable to the appeal would be paid in accordance with agreed terms;
Particulars
i)by the costs agreement dated 19 May 2015, Mr Phillips’ fees on appeal were to be paid within 14 days of invoicing;
ii)Mr Phillips’ earlier trial fees remained outstanding and outside the agreed terms;
c)Mr Phillips was incapable of completing his retainer by reason of anxiety and depression;
d)the strain placed upon Mr Phillips by the case was such that Mr Phillips would be physically unable and mentally incapable of discharging the retainer;
e)further and in the alternative, the strain placed upon Mr Phillips by the case was such that Mr Phillips would be physically unable and mentally incapable of discharging the retainer without threatening his practice or wellbeing;
Particulars of d), e) and f)
i)Mr Phillips suffered anxiety and depression that was caused, at least in part, by the stresses and strains of the proceedings concerning Viscariello v Macks and the appeal in relation thereto;
ii)Mr Phillips’ suicide was the manifestation of his anxiety and depression;
iii)in consequence of Mr Phillips’ anxiety and depression, and thereby his suicide, Mr Phillips was incapable of discharging his retainer in respect of the appeal.
The District Court Judge did not allow the amendment in 45.2.2 because it raised, for the first time, whether the act of suicide was voluntary or involuntary. In his Honour’s view, Mr Viscariello would be prejudiced by raising that issue three years after the original statement of claim. The District Court Judge characterised the remaining amendments as more explicit pleadings of the alleged breach of Mr Phillip’s duty of care and as merely ‘fine tuning’ or ‘bringing into sharper focus’ issues which were plainly pleaded from the commencement.
On appeal, to David AJ, Mr Viscariello contended that the amendments were prejudicial to him as a self-represented litigant or litigant in person and that it substantially expanded the defence to his actions. He relied on the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University.[29] Auxiliary Justice David dismissed the appeal. He too accepted that the amendments did no more than particularise the existing defence.
[29] (2009) 239 CLR 175.
On dismissing the appeal, David AJ remitted the matter to the District Court to fix a new date for trial. The application for permission to appeal against the order of David AJ is governed by Supreme Court Rules 288, 289, 290 and 291 which provide:
288—Appeals requiring permission
(1)Subject to any statutory provision to the contrary, an appeal to the Court lies by permission of the Court if—
(a)     the judgment subject to the appeal is—
(i)    an interlocutory judgment of the Court given by a Judge; or
(ii)     an interlocutory judgment of a Judge of the District Court; or
(iii)    a judgment given on appeal from an interlocutory judgment; or
(iv)a judgment given by a single Judge on appeal from a Magistrate sitting in the Youth Court, or
(b)     the appeal is limited to a question about costs.
(2)If the appellant commences an appeal before obtaining permission to appeal, the appeal is conditional on permission to appeal being granted and, if permission is refused, the appeal lapses.
289—Appeals to the Full Court – Manner of seeking permission to appeal
(1)When permission to appeal is required and the appeal will, if permission is granted, be heard by the Full Court, the appellant may seek permission to appeal—
(a)     by commencing the appeal in the ordinary way and including in the notice of appeal a request for the necessary permission;
(b)     if the appeal is against a judgment of a single Judge or Master of the Court, by making, within 14 calendar days of the judgment, application to that Judge or Master for permission to appeal; or
(c)     if the appeal is against a judgment of the South Australian Civil and Administrative Tribunal or the South Australian Employment Tribunal and an appeal lies with leave of the Court to the Full Court by commencing the appeal in the ordinary way and including in the notice of appeal a request for the necessary leave;
(2)An application for leave to appeal under subrule (1)(c) is to be heard and determined in the first instance by a single Judge;
(3)If an application under subrule (1)(b) is refused, the appellant may renew the application to the Full Court by commencing, within 5 business days of the refusal, an appeal in the ordinary way under rule 290 and by including in the notice of appeal a request for the necessary permission.
(4)If an application under subrule (2) is refused, the appellant may renew the application to the Full Court by interlocutory application filed within 5 business days of the refusal. The appellant must, within 2 business days after filing the interlocutory application, serve a copy on all parties to the appeal.
…
(7)As soon as practicable after any direction or order has been made by the Full Court the Court will give written notification to the parties of the direction or order.
291—Appeals to the Full Court – Request for permission to be considered by Judge or Master at first instance
(1)An application under rule 289(1)(b) to a Judge or Master for permission to appeal to the Full Court against a judgment of that Judge or Master may be made—
(a)     subject to any contrary order of the Judge or Master, by oral application at the time of any attendance before the Judge or Master in relation to the action; or
(b)     by interlocutory application supported by an affidavit setting out the grounds of the application.
(2)An application under rule 289(1)(c) to a Judge for leave to appeal to the Full Court against a judgment of the South Australian Civil and Administrative Tribunal or South Australian Employment Tribunal is to be made in the manner prescribed by rule 289(1)(c) and the application for leave is to be supported by an affidavit setting out the grounds of the application.”
(3)The other parties are not to file any affidavit or summary of argument unless and until a direction to that effect is given by the Court.
(4)When an application is made under subrule (1) or subrule (2), the Court may—
(a)     determine the application without hearing oral argument from any party;
(b)     direct some or all of the other parties to file and serve a summary of argument;
(c)     direct that the application be listed for oral argument;
(d)     grant or refuse permission to appeal;
(e)     make any other order which may be appropriate in the circumstances.
On 18 May 2021, this application pursuant to Rule 289(1)(b) was referred directly to the Court of Appeal by Kourakis CJ because of the auxiliary appointment of the Judge of this Court against whom the application is brought and the close connection between the subject matter of that application and the renewed application for permission to appeal against the decisions of Doyle J.
On the application for permission to appeal against the decision of David AJ, Mr Viscariello repeats the submissions put before the District Court Judge and David AJ. Mr Viscariello focusses in particular on what he described as the failure to explain the application for an amendment to the pleadings after the Administrator had consented to the fixing of a trial date. The amendment of pleadings to more closely define the issues in dispute leading up to trial, cannot be equated with the late initiation of proceeding. The critical question is whether the amendment raises new issues that will disrupt the orderly progress of the matter to trial, and, even if it does, whether a balance of the respective interests of the parties in ensuring that all aspects of the controversy are litigated and resolved favours granting or refusing the amendment.
In this matter, for the reasons given by the Judge and David AJ, no new issue was raised. In any event, whilst the appeal was pursued against the Judge’s order, it became necessary to vacate the trial. It is, therefore, not arguable that the further particularisation of the Administrator’s defence could cause Mr Viscariello any prejudice.
Conclusion
For the above reasons, we refuse permission to appeal and dismiss each of the applications.

Australian National University (2009) 239 CLR 175.