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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Viscariello v Tamasauskas and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] SASC 31
Decision Date: 4 March 2020

CaseChat Overview and Summary

The case of Viscariello v Tamasauskas concerns an action for breach of agreement and duty that was originally brought by the appellant against the respondent. The appellant sought damages for the breach of a retainer agreement by the late Andrew Patrick Phillips, who committed suicide before the appeal could proceed. The respondent, Diana Tamasauskas, as the administrator of Mr Phillips' estate, defended the action by asserting, among other things, that the retainer agreement was frustrated by Mr Phillips' death. The case has a complex procedural history, involving numerous amendments to the pleadings and interlocutory applications. The appellant filed a third statement of claim on 4 October 2018, and the respondent filed a second defence on 18 October 2018. The respondent subsequently applied for leave to file a third defence, which was granted by Judge McEwen of the District Court on 25 September 2019. The appellant now seeks permission to appeal the District Court's decision to allow the respondent to file a third defence.

The central legal issue before the court was whether the District Court Judge correctly exercised his discretion in allowing the respondent to file a third defence. The appellant argued that the amendments to the pleadings would cause prejudice, as they introduced new matters that were not previously disclosed. The respondent, on the other hand, contended that the amendments were merely a further elaboration of the existing defences and were necessary to address the points raised by the third statement of claim. The court needed to determine whether the amendments would cause prejudice to the appellant and whether the trial judge had acted within his discretion in permitting the respondent to file a third defence.

The court found that the matters set out in the amended paragraphs of the respondent's third defence would inevitably arise for consideration at the trial and that the amended pleadings were essentially a further detail of the existing pleadings. The court concluded that the amendments were not prejudicial to the appellant, as they were in response to the third statement of claim and addressed points that would be considered at the trial. The court held that the District Court Judge had correctly exercised his discretion in allowing the respondent to file a third defence, and therefore refused the appellant's application for permission to appeal.

In conclusion, the court dismissed the appellant's application for permission to appeal and remitted the matter to the District Court to set a date for trial. The court's decision was based on the finding that the amendments to the pleadings were not prejudicial and that the trial judge had correctly exercised his discretion in allowing the respondent to file a third defence. The court's refusal of permission to appeal meant that the amended pleadings would stand, and the matter would proceed to trial as scheduled.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.