Viscariello v Tamasauskas - [2020] SASC 31

SUPREME COURT OF SOUTH AUSTRALIA
(Appeals to a Single Judge: Application)
VISCARIELLO v TAMASAUSKAS
[2020] SASC 31
Judgment of The Honourable Auxiliary Justice David
4 March 2020
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - AMENDMENT
Action by appellant for breach of agreement and breach of duty commenced on 30 September 2016 – subsequent amendments to statement of claim and defence – third statement of claim is dated 4 October 2018 and second defence is dated 18 October 2018 – respondent applied for leave to file a third defence – leave to file a third defence with certain amendments given by District Court Judge – appellant applies for permission to appeal against orders made by District Court Judge allowing the respondent to file a third defence.
Held: Permission to appeal refused – no prejudice to the appellant in the amendments being allowed.
Aon Risk Services Australia Pty Ltd v Australian National University (2009) 239 CLR 175; Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59, discussed.
Viscariello v Macks [2014] SASC 189, considered.

VISCARIELLO v TAMASAUSKAS
[2020] SASC 31
Appeal to a Single Judge
DAVID AJ.

This is an application for permission to appeal against orders made by a Judge in the District Court concerning pleadings in relation to a trial in that Court. The appellant is unrepresented and presented his arguments both in the District Court and on appeal to me without the assistance of counsel.
Basically, the order appealed against is one granting the respondent leave to amend her defence to an action brought by the appellant.
Background of the proceedings in the District Court
The proceedings have a long and complex procedural history culminating in the present application for permission to appeal. The appellant (the plaintiff in the original matter) claims loss and damages for breach of a retainer arising from the suicide of his then counsel, Andrew Patrick Phillips, who was acting for him in a prospective appeal to the Supreme Court. The appellant had brought proceedings against Peter Ivan Macks in the Supreme Court.[1] As a result of that trial, the appellant retained the late Mr Andrew Patrick Phillips as counsel for the purposes of an appeal to the Full Court which was listed on Monday 4 April 2016. There is no dispute that, following an altercation with his wife on the evening of 24 March 2016, Mr Phillips committed suicide. The present action, which is the subject of the order from which permission to appeal is sought, is a claim by Mr Viscariello against Diana Tamasauskas as the administrator of the estate of Andrew Patrick Phillips. In essence, the claim is that by committing suicide Mr Phillips breached his retainer with the appellant and as a result damages were claimed under a variety of heads.
[1] Viscariello v Macks [2014] SASC 189.
The respondent (the defendant in the original matter), whilst admitting that Mr Phillips had committed suicide, claimed, among other things, that the contract of retainer between Mr Phillips and the appellant’s lawyers at the time was frustrated by the death of Mr Phillips.
The present matter was commenced when the appellant filed a summons, a statement of claim, and an affidavit on 30 September 2016. Since that date, there has been a tortured and drawn out procedural history involving many interlocutory applications concerning the pleadings and a stay of proceedings. After a number of amendments and interlocutory hearings, a third statement of claim was filed and served on 4 October 2018 and on 18 October 2018 a second defence was filed and served by the respondent.
The matter was then tentatively listed for trial on 8 October 2019 before Judge McEwen of the District Court. In a directions hearing on 28 June 2019, Judge McEwen sought clarification of certain aspects of the respondent’s second defence and requested that any proposed amendments should be provided to the appellant and any disagreements about those proposed amendments should be the subject of an interlocutory application. On 19 September 2019, the respondent circulated to the appellant and the Court a further draft of the proposed third defence. The argument about the proposed amendments took place before the Judge on 20 September 2019 and, on that day, he entered an ex tempore judgment. It is from that judgment that the appellant now appeals. As a result of that judgment, on 25 September 2019 the respondent filed a third defence.
There was an argument on appeal which has now been resolved, namely to vacate the trial date of 4 February 2020. That date, of course, has now passed but at the time of the hearing of this appeal it was agreed that the trial date of 4 February 2020 should be vacated and the matter should be remitted to Judge McEwen to set another date. The matter now to be decided is whether permission should be granted and the appeal allowed from Judge McEwen’s order that the proposed amendments be granted.
Appeal
The claim against the deceased’s estate is a claim for damages brought about by the deceased’s suicide. The original defence and the second defence were basically that his suicide did not create a cause of action but was a frustration of his contract of retainer and did not give rise to any damages.
The amendment sought and allowed is as follows:
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.
In order to give context, I set out paragraphs 40 and 45 of the third statement of claim:
40Each of the Commercial & General Law Retainer and Ujvari Retainer were special retainers within the meaning of Rule 112 of the Victorian Bar Rules because Mr Phillips was engaged for a particular party (namely the Plaintiff) in particular proceedings (namely Viscariello v Macks, and the Appeal).
41Rule 112(d)(i) of the Victorian Bar Rules has the effect that where there is a special retainer the client (ie the Plaintiff) has a right to the services of the barrister (ie Mr Phillips) retained during the whole of the proceedings (namely Viscariello v Macks, and the Appeal).
42Further and in the alternative, at all material times between 2009 and 23 March 2016, Mr Phillips was subject to a duty and/or obligation to the Plaintiff that is implied by operation of law to continue to act as counsel for the Plaintiff:
42.1 In Viscariello v Macks; and
42.2 In the Appeal, after the Appeal was commenced.
43Further and in the alternative, there was a term implied into each of the Commercial & General Law Retainer and the Ujvari Retainer by operation of law that Mr Phillips was required to continue to act as counsel for the Plaintiff throughout the whole of Viscariello v Macks including the Appeal.
44As a result of committing suicide on 24 March 2016, Mr Phillips ceased acting as counsel for the Plaintiff in Viscariello v Macks and the Appeal.
45As a result of committing suicide on 24 March 2016, Mr Phillips thereby:
45.1 Breached Rule 112(d)(i) of the Victorian Bar Rules;
45.2 Breached the duties and/or obligations referred to in paragraph 42 above;
45.3 Breached Rule 13 of the Supreme Court Civil Rules 2006 (SA) by committing a procedural irregularity; and/or
45.4 Breached the terms of the retainers referred to in paragraph 43 above;
In his ex tempore reasons, Judge McEwen in considering the matter put the amendments into two broad characterisations. He classified the proposed amendment at paragraph 45.2.2 as the “voluntariness amendment”. He considered the rest of the amendments as the “remainder”. In dealing with the voluntariness amendment, he considered that that pleading did raise significant new issues of both fact and law, because it puts in issue at trial the nature and characterisation of the act of suicide and whether it was a voluntary act. As the act of suicide by Mr Phillips is the critical event relied upon by the appellant as the basis of his cause of action, to now classify it as an “involuntary act” three years after the original statement of claim raises new issues which would be prejudicial to the appellant. He therefore disallowed the amendment. The question of whether suicide itself can be an involuntary act may also have caused Judge McEwen concern.
In relation to the remainder, Judge McEwen was firstly influenced by the fact that at a directions hearing on 28 June 2019 he, in fact, asked for more explicit pleadings from the respondent in relation to the statement of claim’s alleged duty of care and alleged breach. He considered that the “remainder” amendments were merely a more detailed explanation of the present proceedings. He found the following:
The consideration of merit of the proposed amendments is of less significance in this case insofar as noted, I consider they are no more than further details of the existing pleadings. Ordinarily, the merit factor means a rudimentary assessment of the prospective merit of the topic or issue sought to be introduced by the amendments.
These pleadings, in my view, do not introduce new topics or issues. What they do is fine tune or bring into sharper focus the issues that were plainly there all along. It was me who requested that sharper focus. The merit of these amendments is that the trial judge, and indeed the plaintiff, both have more sharply defined pleadings on those existing topics upon which issue was already joined. I am not convinced that the defendant would not have been entitled to fully explore these topics at trial based upon the pleadings as they were. Pleadings should be our servant, not our master. There is nothing surprising or novel in the proposed amendments. They are the same road map with more detailed coordinates. For my part, I think it will be a benefit to have that further detail prior to commencing the trial.
The next consideration is the state of the proceedings. We are close to a trial date. However, I see no reason why further details of existing pleadings will have any impact upon the progress of the proceedings. They do no more than spell out for the court and the plaintiff the defendant's existing stance in more detail. Furthermore, notice was given to the plaintiff over two months ago. It was only because I have been on leave that this application could not be dealt with until now. The explanation for the proposed amendments that I am presently dealing with is that they are a response to my request. I accept that explanation.
Mr Viscariello has submitted that this application is part of a deliberate strategy on the part of the defendant to delay this matter. Indeed, at one point he submitted ‘delay by deception’. I do not see any plausible basis for that submission and I do not accept it. As noted, I do not consider that allowing these amendments will place any strain, delay or disruption upon the parties or judicial resources. In short, these pleadings are further detail of existing pleadings, they are in response to my request as trial judge, there is absolutely no prejudice to the defendant in having that further detail now rather than waiting for those matters to be spelled out on behalf of the defendant during trial.
Mr Viscariello now argues that the amendments that were allowed are prejudicial to the appellant, especially as he is a self-represented litigant and it will frustrate him getting the matter up for trial. He argues that he is now facing an entirely new and substantially expanded defence involving new factual and legal issues. He also argues that the ruling of Judge McEwen was contrary to the principles set out in the High Court case of Aon Risk Services Australia Ltd v Australian National University (“Aon”)[2] and the decision of the Full Court of the Supreme Court of South Australia in Channel Seven Adelaide Pty Ltd v Manock (“Channel Seven v Manock”).[3]
[2] (2009) 239 CLR 175.
[3] [2010] SASCFC 59.
In Aon, an action in the ACT Supreme Court by the plaintiff against his insurer and insurance broker had been on foot for two years. On the third day of a four-week trial, the plaintiff reached a settlement with its insurer. It then applied for an adjournment of the trial against the broker in order to make substantial amendments to its statement of claim against the broker and to allege a substantially different case than that which it had previously pleaded. The trial Judge adjourned the application for leave to amend, which was heard two weeks later. The plaintiff’s solicitor said on the hearing of the application that the decision to seek the amendments was made on the basis of information that was received during the mediation which gave rise to the settlement against the insurers. The trial Judge reserved his decision and about 11 months later allowed the amendments. The High Court held eventually that the Judge was wrong and the amendment should not have been allowed.
The difference between Aon and the present matter is obvious. Most important is the fact that, in Aon, a substantially different case arose from that which had previously been pleaded.
In Channel Seven v Manock, amendments were sought by the defendants in a defamation case which would introduce, at a late stage in the proceedings, an entirely new defence. The matters to be taken into account in determining whether an application to amend should be granted were set out by Bleby J in Channel Seven v Manock and include, among other things, whether there has been undue delay in making the application, and whether the point raised by the amendment would be raised in any event at the trial.
I agree with Judge McEwen in the present case that those matters set out in the amended paragraphs which are the subject of this appeal will inevitably arise for consideration at the trial and I agree with his conclusion that the amended pleadings are, really, a further detail of the existing pleadings, which happened to be in response to a request by Judge McEwen as the trial Judge. I can see no prejudice to the appellant in the amendments being allowed.
Conclusion
I refuse permission to appeal and I remit the matter to the District Court to fix a date for trial.