Viscariello v Tamasauskas - [2018] SASC 111

SUPREME COURT OF SOUTH AUSTRALIA
(Appeals to a Single Judge: Civil)
VISCARIELLO v TAMASAUSKAS
[2018] SASC 111
Judgment of The Honourable Justice Doyle
7 August 2018
PROCEDURE - INFERIOR COURTS - SOUTH AUSTRALIA - DISTRICT COURT
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - CASE MANAGEMENT - OTHER MATTERS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - OTHER MATTERS
Appeal from a decision of a Judge of the District Court upholding a temporary stay ordered by a Master of that Court.
The plaintiff (Mr Viscariello) brought proceedings in the District Court against the defendant administrator of the estate of his late barrister, alleging breaches of duty by that barrister. The defendant sought, and obtained, a temporary stay of those proceedings on the basis that the outcome of an appeal in related Supreme Court proceedings would be relevant to the issues in the District Court proceedings; and that it would involve a waste of the parties’ and court’s time and resources to progress the District Court proceedings in the interim.
Held (per Doyle J):
1. The appeal was from an order which was interlocutory, and not “in the nature of an injunction” for the purposes of s 50(5) of the Supreme Court Act 1935 (SA), and hence required permission.
2. Permission to appeal refused. The proposed appeal has insufficient merit to warrant appellate consideration; and the proposed appellant will not suffer substantial prejudice if the order is left to stand because it is open to him to apply to the Master to lift the stay now that the outcome of the Supreme Court appeal is known.
3. The appeal would be dismissed on the merits in any event as the appellant has not identified any error in the sense required by House v The King (1936) 55 CLR 499 at 504-505 in the Master’s exercise of his discretion to order a stay.
District Court Civil Rules 2006 (SA) rr 3, 113, 116, 192; District Court Act 1991 (SA) ss 43(2)(a), 43(2)(b), 43(3); Supreme Court Act 1935 (SA) s 50(5)(c); Supreme Court Civil Rules 2006 (SA) r 288, referred to.
Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (1992) 34 FCR 287; UDP Holdings Pty Ltd v Ironshore Corporate Capital Ltd [2016] VSC 400; Palmer v Citic Ltd [2017] WASC 253; Huntingdale Village Pty Ltd v Mallesons Stephens Jacques (No 2) (2014) 99 ACSR 225; House v The King (1936) 55 CLR 499; Kowalski v R J Cole & Partners (2015) 122 SASR 320; Re Luck (2003) 78 ALJR 177; Rouse v IOOF Australia Ltd (No 2) [1999] SASC 205; Total Trading SRL v Nastri [2007] VSCA 244; Manos v Maras [2007] SASC 192, considered.

VISCARIELLO v TAMASAUSKAS
[2018] SASC 111

DOYLE J: This is an appeal from a decision of a Judge of the District Court upholding an order, made by a Master of that Court, granting a temporary stay…

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.

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Details

Case: [2018] SASC 111
Decision Date: 7 August 2018

CaseChat Overview and Summary

The District Court of South Australia dealt with an appeal by Mr Viscariello against a decision made by a Master to stay proceedings in a case involving allegations of misconduct by Mr Macks, who served as the administrator and liquidator of two companies. Mr Viscariello, a director and shareholder of these companies, claimed damages due to the suicide of his counsel, Mr Phillips, who had been preparing for an appeal in a separate Supreme Court case against Mr Macks. The District Court proceedings were affected by Mr Phillips' death, leading to the stay and subsequent appeal against that stay.

The central legal issues in this case were whether the District Court Master correctly exercised her discretion in staying the proceedings and whether Mr Viscariello had established any error on the part of the Master that warranted a real review of the decision. Specifically, the court had to determine if the Master's reliance on the connection between the District Court proceedings and the Supreme Court appeal was appropriate, and if the Master erred in applying the decision from Huntingdale.

Judge Bochner, who heard the appeal, concluded that the Master did not err in her decision to stay the proceedings. The Judge held that the Master's reliance on the relationship between the two sets of proceedings was justified and that there was no error in the application of the Huntingdale decision. Judge Bochner found that the Master's decision was reasonable and not plainly unjust, thereby dismissing Mr Viscariello's appeal. The court also considered that even if there were grounds to permit the appeal, it would have been dismissed on its merits.

Ultimately, the court refused permission for Mr Viscariello to appeal the decision, and if permission had been granted, the appeal would have been dismissed on its merits. This outcome was based on the court's determination that the Master's exercise of discretion was correct and that no substantial error was made in the decision to stay the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

Mr Viscariello now seeks to appeal from this decision of Judge Bochner in the District Court appeal. He contends that he is entitled to bring this appeal as of right. In my view the proposed appeal requires permission, and permission to appeal should be refused. Further, and in any event, I would have dismissed the appeal on its merits. These are my reasons for reaching these conclusions.Background According to Mr Viscariello’s second statement of claim in the District Court proceedings, the Supreme Court proceedings were commenced by him against Mr Macks in February 2006. While the nature of those proceedings was not addressed in any detail in the statement of claim, or in the material before the Master on the stay application, they involved allegations by Mr Viscariello of misconduct by Mr Macks in his roles as administrator, and then subsequently liquidator, of two companies of which Mr Viscariello had been a director and shareholder. Mr Viscariello pleads that Mr Phillips was retained, through solicitors, as his counsel in the Supreme Court proceedings from 2009 until his death on 24 March 2016. In particular, Mr Phillips appeared for Mr Viscariello during the trial of those proceedings, which extended over 40 sitting days between February 2012 and February 2013. He was also retained to appear in the Supreme Court appeal that had been listed to commence on 4 April 2016. By the time of Mr Phillips’ death, significant work had been done by Mr Phillips in preparing for the appeal on behalf of Mr Viscariello, which included drafting the notices of cross-appeal and alternative contentions, and also preparing a substantial case book, a summary of argument and a list of authorities. Indeed, on 23 March 2016, the day before his death and only shortly prior to the anticipated appeal hearing, Mr Phillips appeared for Mr Viscariello by telephone at a directions hearing. As a result of Mr Phillips’ suicide on 24 March 2016, Mr Viscariello brought an urgent application to vacate the Supreme Court appeal. As mentioned earlier, the appeal was vacated. It was initially relisted to commence on 7 November 2016, but ultimately commenced on 13 February 2017. In his statement of claim, Mr Viscariello alleges that by committing suicide on 24 March 2016 Mr Phillips breached his obligations under the relevant Bar Rules, his general law duties and his retainer to appear for Mr Viscariello throughout the Supreme Court proceedings, including in the Supreme Court appeal. Mr Viscariello further pleads, in the introductory words to paragraph 32 of his statement of claim, that as a result of these breaches by Mr Phillips, he has suffered loss and damage which is “ongoing including” the various matters pleaded in the balance of paragraph 32, namely:· the need to urgently retain new counsel in the Supreme Court appeal (paragraph 32.1);· the expense incurred in retaining new counsel, including their fees for reading documents already read by Mr Phillips (paragraph 32.2);· the fees charged by Mr Phillips from December 2014, which will be wasted given that fees will now be incurred for new counsel (paragraph 32.3);· the need to urgently retain new solicitors, the expenses incurred in doing so, and the fees charged by Mr Viscariello’s solicitors from December 2014 which will be wasted given that fees will now be incurred for new solicitors (paragraphs 32.4 to 32.6); and· the need for Mr Viscariello to appear in person at various hearings subsequent to Mr Phillips’ death, including in defending an application by Mr Macks before the trial judge in the Supreme Court proceedings as a consequence of which Mr Macks “was able to obtain an outcome which he would not otherwise have been able to obtain” if Mr Phillips had not acted in breach and the appeal had commenced on 4 April 2016 (paragraph 32.7). Mr Viscariello particularises this last matter as relating to an order, following a contested hearing, in which Mr Macks was given leave to file a further defence, which he did on 3 June 2016.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Ultimately the Master ordered a stay in the following terms:1. This action be stayed until further order pursuant to r 192 of the District Court Rules.2. Liberty to the parties to apply upon determination of the appeal and the cross-appeal in the Supreme Court proceedings …Decision of Judge Bochner Mr Viscariello appealed the Master’s order granting a stay of the proceedings. Being an appeal from an interlocutory decision, the appeal was as of right and to be heard by a Judge of the District Court under s 43(2)(a) of the District Court Act 1991 (SA). The appeal was heard by Judge Bochner on 14 December 2017. As mentioned in the introduction to these reasons, judgment on the Supreme Court appeal was delivered on 22 December 2017.[3] Despite this, the parties requested that Judge Bochner determine the appeal, and on 6 April 2018 her Honour delivered reasons and dismissed Mr Viscariello’s appeal from the stay ordered by Master Keith.[4][3] Viscariello v Tamasauskas [2018] SADC 29.[4] Judge Bochner allowed the appeal from Master Keith’s order that Mr Viscariello pay the defendant’s costs of the stay application on an indemnity basis, and remitted the issue of costs to the Master for further hearing: Viscariello v Tamasauskas [2018] SADC 29 at [62]. In her Honour’s reasons, Judge Bochner accurately described the nature of the appeal. It was an appeal by way of rehearing, and thus required that her Honour undertake a real review of the decision and reasons of Master Keith. However, as her Honour explained, for the appeal to succeed, it was nevertheless necessary for Mr Viscariello to establish error on the part of the Master. And as the decision of the Master involved the exercise of a discretion, this entailed establishing error in the sense required by House v The King.[5] It was not enough to establish error and hence succeed on appeal that the Judge might have exercised the discretion differently. It was necessary for the appellant, Mr Viscariello, to establish that in exercising the discretion the Master made an error of principle, made a material error of fact, took account of an irrelevant consideration, failed to take account of a relevant consideration or otherwise reached a decision that was unreasonable or plainly unjust. It was only if the Judge was satisfied of error in this sense that the appeal would succeed and there would be an occasion for the Judge to exercise the discretion afresh. [5] House v The King (1936) 55 CLR 499 at 504-505. The essence of the complaints by Mr Viscariello on the appeal before Judge Bochner were that the Master erred in relying upon a connection or relationship between the conduct of the District Court proceedings and the outcome of the appeal in the Supreme Court proceedings. In particular, it was contended that the Master erred in so relying in circumstances where the outcome of the appeal in the Supreme Court proceedings was unrelated and not “adjectival or ancillary”[6] to the District Court proceedings; any connection or relationship that did exist did not emerge from a consideration of the pleadings in the District Court proceedings; and the notices of appeal and cross-appeal in the Supreme Court appeal were not before the Master. It was also contended that the Master erred in applying the decision in Huntingdale. [6] The genesis of this phrase was Viscariello v Legal Profession Conduct Commissioner (2017) 128 SASR 387 at [79]-[80].

Ratio Decidendi

Legal Principle Established

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