Viscariello v Tamasauskas

Case [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…

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Viscariello v Tamasauskas [2021] SASCA 49
Case
[2021] SASCA 49
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CaseChat Overview and Summary

This matter concerned multiple applications for permission to appeal by Mr Viscariello against decisions made by judges of the Supreme Court of South Australia. The primary dispute arose from a District Court action brought by Mr Viscariello against the administrator of the estate of Mr Phillips, a barrister who had represented Mr Viscariello in prior litigation. Mr Viscariello alleged that Mr Phillips had breached his retainer by committing suicide, leading to losses including wasted fees and the adverse outcome of an appeal in the prior litigation. The administrator denied liability and sought a stay of Mr Viscariello's action pending the determination of the prior appeal.

The Court was required to determine whether permission to appeal should be granted in respect of four separate decisions. These included an appeal against a temporary stay of proceedings granted to the administrator, an appeal concerning allegations of judicial bias, an appeal relating to interlocutory orders where the only practical issue was costs, and an appeal against a decision allowing the amendment of pleadings. The central legal issue in the first appeal was whether the stay of proceedings constituted relief in the nature of an injunction, thereby allowing an appeal as of right under section 50(5)(c) of the Supreme Court Act 1935 (SA).

In relation to the first appeal, the Court found that the judge's reasons disclosed no discernible error and that there was no utility in the appeal, as the appropriate relief was to apply to the District Court to have the stay lifted. For the second appeal, the Court determined that a fair-minded lay observer would not apprehend bias on the part of the judge, and the appeal had no prospect of success. The third appeal was refused permission on the basis that interlocutory orders of no utility should not be the subject of appeal, particularly when the only practical purpose was to review a decision on costs. Finally, regarding the amendment of pleadings, the Court held that such amendments, which further particularise issues, cannot be equated with the late initiation of proceedings. The critical question was the balance of interests in ensuring all justiciable controversies are litigated. The judge's decision to allow the amendment raised no new issues, caused no prejudice to Mr Viscariello, and again, there was no utility in the appeal.

Consequently, the Court refused permission to appeal in all four instances.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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).

Ratio Decidendi

Legal Principle Established

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