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

1. 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 of proceedings ordered by a Master of that Court.

2. The plaintiff, Mr Viscariello, issued these proceedings in the District Court against the defendant administrator of the estate of the late Mr Phillips, alleging breaches of duty and retainer by Mr Phillips in his capacity as counsel for Mr Viscariello (the District Court proceedings).

3. At the time of his death by suicide on 24 March 2016, Mr Phillips had been engaged as counsel by Mr Viscariello in long-running proceedings in the Supreme Court of South Australia (the Supreme Court proceedings).  Those proceedings had been concluded at first instance, and an appeal and cross-appeal had been listed to commence before the Full Court of the Supreme Court on 4 April 2016 (the Supreme Court appeal).

4. As a result of Mr Phillips’ death, the Supreme Court appeal hearing was vacated.  By the time the District Court proceedings were instituted in September 2016, the appeal had been relisted for hearing commencing on 7 November 2016.  This hearing was subsequently vacated, and it ultimately commenced on 13 February 2017.

5. In the District Court proceedings, Mr Viscariello alleges that Mr Phillips was obliged by the relevant Bar Rules, and by reason of his duties at law and under his retainer, to continue to represent Mr Viscariello throughout the duration of the Supreme Court proceedings, including the Supreme Court appeal.  Mr Viscariello further alleges that by committing suicide, Mr Phillips acted in breach of his duties and retainer.

6. On 11 November 2016, the defendant filed an application seeking a stay of the District Court proceedings on the basis that the nature and quantum of Mr Viscariello’s claim could not be ascertained until the Supreme Court appeal had been determined, and that it would involve a waste of the parties’ and the Court’s time and resources to progress the proceedings in the interim.  That application was heard by Master Keith on 11 August 2017, and on 5 September 2017 the Master ordered that the action be stayed until further order.  The Master also granted the parties liberty to apply upon determination of the Supreme Court appeal.

7. Mr Viscariello appealed from the Master’s decision.  This appeal was heard by a Judge of the District Court, Judge Bochner, on 14 December 2017 (the District Court appeal).  Her Honour reserved her decision on that appeal.

8. On 22 December 2017, the Full Court of the Supreme Court delivered judgment in the Supreme Court appeal.  Despite this decision, the parties requested that Judge Bochner proceed to determine the District Court appeal.  On 6 April 2018, her Honour dismissed Mr Viscariello’s appeal from the stay ordered by Master Keith.

9. 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

10. 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.

11. 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.

12. 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.

13. 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.

14. In his statement of claim, Mr Viscariello also pleads the existence of two mortgages granted by him, in February 2012 and December 2014 respectively, over certain real estate owned by him in order to secure the past and future fees of his solicitors and Mr Phillips.  He pleads that these mortgages were supported by agreements which included various terms in relation to the payment of fees incurred by Mr Viscariello, and obliged Mr Phillips to continue to act for Mr Viscariello through to finalisation of the Supreme Court proceedings, including on the Supreme Court appeal.  It is pleaded that Mr Phillips’ suicide also involved a breach of these agreements.

15. Mr Viscariello’s statement of claim concludes by with a prayer for relief which seeks various heads of declaratory relief, both as to the existence of the various alleged breaches and as to the unenforceability of the two mortgages.  The prayer for relief also seeks unquantified damages for the alleged breaches of duty and retainer, and breach of the agreements in support of the two mortgages; and a credit for the fees paid to Mr Phillips for his services provided after 19 December 2014.

16. In her defence, the defendant denies any liability to Mr Viscariello on various grounds, including that Mr Phillips did not owe or breach the alleged obligations or duties.  The defence also contains a denial that Mr Viscariello suffered any loss or damage, and that he is entitled to the relief claimed or any relief at all.  In addition to these denials, the defence includes some positive allegations as to why the claimed loss would not be suffered.  These include allegations that Mr Phillips would have been entitled to terminate his retainer in any event, and that if Mr Phillips had appeared in the Supreme Court appeal he would have been required to undertake further work, including re-reading the documents relevant to the appeal.  The defence thus puts in issue, amongst other things, the fact and extent of any loss, including by way of wasted costs to be incurred by Mr Viscariello in relation to the Supreme Court appeal. 

17. While new counsel were ultimately retained to appear for Mr Viscariello in the Supreme Court appeal, this had not occurred at the time the statement of claim and defence in the District Court proceedings were filed in October and November 2016 respectively.  The statement of claim was nevertheless drafted on an apparent assumption this would occur and would occasion costs over and above the fees of Mr Phillips that would have been incurred had he appeared in the appeal.  The defence, on the other hand, pleaded that new counsel had not yet been retained, and put in issue whether these anticipated costs would be incurred either at all or to the extent claimed.

18. The defendant’s application for a stay was filed on 11 November 2016.  It sought a stay under r 192 of the District Court Civil Rules 2006 (SA).  It was supported by two affidavits of the defendant’s solicitor, Mr Iles.  Mr Viscariello ultimately filed four affidavits in opposition to the stay, the last of these dated 28 July 2017. 

19. The affidavit material included some correspondence between the parties prior to the commencement of the District Court proceedings.  In that correspondence Mr Viscariello made various contentions as to the nature and extent of his claim against Mr Phillips’ estate.  He claimed an amount of $500,000, and contended that if his claim was not resolved promptly he might not be in a position to instruct alternate counsel, and might need to represent himself on the appeal.  He contended that his prospects of success on the appeal without legal representation would “be substantially, if not completely diminished”.  He said that his loss and damage were “ongoing and escalating”, and added that his “worst fears are that as a consequence of Mr Phillips’ actions” he might lose the appeal.  He said that in the latter event “the consequences for me and my family would be catastrophic with my loss and damages, which I will visit on the estate of Mr Phillips, will further escalate into the $millions”.

20. The application for a stay was heard by Master Keith on 11 August 2017.  By this date, not only had new counsel been retained, but also the Supreme Court appeal had been heard, and judgment reserved.  Mr Viscariello had apparently consented to the District Court proceedings not being progressed prior to the hearing of the Supreme Court appeal.  However, in his fourth affidavit (dated 28 July 2017), Mr Viscariello noted that the appeal had been heard, and judgment reserved.  He added (in paragraphs 3.6 and 3.7 of that affidavit):

    As a consequence of the Full Court appeal/cross appeal in Viscariello v Macks having been conducted and concluded I am now able, save for any adjustments arising from the issue of final accounts from [my solicitors], to quantify the amount of my claim against the defendant.

    As a consequence of the matter set out above I will proceed to prepare, file and serve an amended claim.

21. Thus, by the time the stay application came to be argued, the issue was whether the proceedings should be stayed beyond the hearing of the Supreme Court appeal and through to the point of it being determined.  Mr Viscariello contended that given the appeal had now been heard, he was in a position to identify and quantify his loss, and that there was thus no basis for staying the District Court proceedings.  The defendant on the other hand contended that the nature and extent of Mr Viscariello’s claim and loss, if any, could not be ascertained until the Supreme Court appeal had been determined; and that to progress the proceedings before that time would result in a waste (or at least inefficient use) of the time and resources of the parties and the Court.

    The Court’s power to grant a stay of proceedings

22. Under r 192 of the District Court Rules the Court “may stay proceedings if the justice of the case so requires”. 

23. The power to order a stay of proceedings is not conditioned upon any threshold finding of prejudice or abuse of process.  While not lightly exercised, the Court has a wide discretion, conditioned only upon what the justice of the case requires.  The discretion requires a balancing exercise having regard to all factors relevant to doing justice between the parties. 

24. Without intending in any way to be comprehensive or exhaustive, the circumstances in which a stay of proceedings might be warranted include where such an order is necessary to prevent an abuse of process, or to ensure the fair conduct of proceedings.  A stay might also be appropriate where it is necessary to ensure the efficient or expedient use of the parties’ and court’s time and resources.

25. The existence of other legal proceedings, particularly where they are related or overlap in terms of the parties or issues involved, will often be a relevant consideration.  The nature of those other proceedings, and their relationship with the subject proceedings, may justify a conclusion that the conduct of the subject proceedings would involve an abuse of process, would jeopardise the fair conduct of one or other set of proceedings, or would result in an inefficient use of the parties’ or the court’s time and resources.  Of course, consideration must also be given to any competing considerations arising from the parties’ general entitlement to pursue their legal rights through litigation.  And even if the circumstances justify a stay of the subject proceedings, the justice of the case might only require a temporary rather than permanent stay.[1] 

    [1]    As to the power to grant a temporary stay in such circumstances, see Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (1992) 34 FCR 287 at 290-291; UDP Holdings Pty Ltd v Ironshore Corporate Capital Ltd [2016] VSC 400 at [39]; Palmer v Citic Ltd [2017] WASC 253 at [7]-[9]; and the authorities referred to therein.

    The stay granted by Master Keith

26. In his reasons for decision dated 5 September 2017, Master Keith summarised the nature of the District Court proceedings, and the context in which the relevant events occurred, in similar terms to those set out above. 

27. The Master observed that there was no dispute between the parties as to the general principles governing the Court’s discretion under r 192 to order a stay. 

28. The Master accepted the defendant’s submission that the nature and quantum of Mr Viscariello’s claim in the District Court proceedings could not be ascertained until determination of the Supreme Court appeal, with the result that the District Court proceedings could not be conducted in a meaningful or efficient manner in the interim.  The Master rejected Mr Viscariello’s contrary submission to the effect that, at least now that the appeal had been heard, his claim could be quantified, understood and determined. 

29. By way of illustration of the uncertainty about Mr Viscariello’s claim, or at least the quantum of his claim, that remained pending the determination of the Supreme Court appeal, the Master noted the defendant’s submission that if Mr Viscariello were to win the appeal he may well be entitled to recover a significant proportion of the costs he had incurred from Mr Macks.  The Master also noted the defendant’s submission that the value to Mr Viscariello of the work done by Mr Phillips (and by the replacement counsel and solicitors), and the extent to which the retention of replacement counsel might have resulted in additional costs, or otherwise have had an impact on the outcome of the Supreme Court appeal, could not be ascertained until the appeal had been determined.

30. The Master rejected Mr Viscariello’s submission on the ground that it took an overly simplistic approach which assumed a direct “cause and effect” relationship between the alleged breaches by Mr Phillips and the costs incurred by Mr Viscariello.  In the Master’s view, the defendant’s submissions established that “a direct cause and the effect conclusion is not self-evident”.

31. While Mr Viscariello had acknowledged the potential for a costs order on the Supreme Court appeal in his favour, he did not accept that this would impact on his claim because it could be addressed by way of subrogation by the defendant to Mr Viscariello’s rights under any such costs order.  The Master rejected this submission as based upon a misconception as to when and how the principles of subrogation operate. 

1. In any event, the Master went on to add that even if Mr Viscariello wished to present his claim and loss on a basis that did not have regard to the outcome of the Supreme Court appeal, it remained relevant that the defendant wished to plead issues by way of response to the claim (and its quantum) that would arise from the outcome of the appeal.  His Honour accepted that an analysis of the outcome of the various issues raised on the appeal would be a necessary part of consideration of whether any of Mr Phillips’ fees have been of value to Mr Viscariello, adding that it ought not to be assumed either that all of the fees paid to Mr Phillips had been wasted, or that the cost of all of the work done by the new legal team was necessarily recoverable as damages.

2. The Master noted the defendant’s reliance upon the decision in Huntingdale Village Pty Ltd v Mallesons Stephens Jacques (No 2)[2] as authority for the proposition that a stay may be appropriate where the same, or at least related, issues will arise in other proceedings and ought properly (in the interest of efficient case management) be first determined in those other proceedings.  Mr Viscariello attempted to distinguish that decision on the basis that there will be no overlap between the issues in the District Court proceedings and the Supreme Court appeal; that the alleged breaches of duty by Mr Phillips and loss that followed were simply not in issue in the Supreme Court appeal.

   [2]    Huntingdale Village Pty Ltd v Mallesons Stephens Jacques (No 2) (2014) 99 ACSR 225 (Huntingdale).

3. The Master held that the decision in Huntingdale could not be distinguished on this basis.  Rather, that decision appeared to have application in the present circumstances in the sense that the outcome of the Supreme Court appeal “will direct the claim and the evidence in relation to the claim in these proceedings.”

4. The Master accepted that there was a relevant distinction between the two cases in that in Huntingdale the plaintiff had not incurred the prejudice that Mr Viscariello had in this case through his payment of fees to both Mr Phillips and the replacement counsel.  However, his Honour reasoned that this prejudice was merely a relevant consideration, rather than a decisive distinction between the cases that undermined reliance upon the principles underlying the decision in Huntingdale.

5. The Master ultimately concluded that a stay was warranted.  His Honour expressed that conclusion as follows:

   The importance of the need to ensure that legal proceedings are conducted in an efficient manner weigh in favour of a stay of this action.  In my view, the determination of the issues on [the Supreme Court appeal] will be a necessary step prior to the proper pleading, identification of loss and damage and production of documents, in support of the plaintiff’s claim made in these proceedings.  For those reasons the defendant is entitled to a stay of this action.

6. His Honour added that this conclusion was consistent with the object of the District Court Rules, and in particular rr 3, 113 and 116 insofar as they emphasised the importance of the orderly, efficient and fair conduct of legal proceedings.  While recognising that these rules, and the objectives they are intended to promote, are generally relied upon in the context of preventing delay, his Honour considered that they were also relevant in the present circumstances where a stay would assist in achieving the stated objectives.

7. In this context, the Master referred to the utility of a “temporary stay” in achieving these objectives, given the potential impact of the outcome of the appeal upon the conduct of the District Court proceedings.  His Honour said:

   The appropriate order is a stay until further order.  The court can assess the position once the Full Court decision has been delivered, subject to expiry of the time for any application to the High Court of Australia for special leave to appeal.

8. 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

9. 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).

10. 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].

11. 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.

12. 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].

13. Judge Bochner rejected each of these related contentions.  Her Honour reasoned that the reference in the authorities to interlocutory applications taking their shape from, and being ancillary and adjectival to, the substantive proceedings meant merely that the applications must be ancillary or adjectival to the conduct or subject matter of the primary proceeding.  There was no requirement that the matters considered on an interlocutory application be confined to matters that have been specifically pleaded.  Here the outcome of the Supreme Court appeal was relevantly ancillary to the conduct of the District Court proceedings.  It was, her Honour held, relevant not only to the quantum, but also the nature, of the claim made by Mr Viscariello.  It was thus permissible for the Master to have taken into account that the Supreme Court appeal had not been determined, and “the uncertainties caused by this in formulating the case to be addressed by the parties in this matter”.[7] 

    [7]    Viscariello v Tamasauskas [2018] SADC 29 at [39].

14. As for the Master’s reliance upon Huntingdale, Judge Bochner acknowledged (as indeed the Master had, at least to some extent) that there were differences between the facts and circumstances in the two cases.  In particular, in the present case the parties were different in the proceedings said to be related, and Mr Viscariello had already incurred prejudice by having paid the fees said to constitute his loss.  Further, the court rules being applied were different.  However, Judge Bochner held that it was the overriding principles that were important, and that the principles distilled in Huntingdale transcended its factual matrix.  In her Honour’s view, the key principles could be seen from the following passage from the reasons of Le Miere J in Huntingdale:[8]

    The court should use its case management powers to ensure the quick, inexpensive and efficient resolution of proceedings before the court.  The only effective means for reducing the costs of the parties are measures which result in less work being done by lawyers over the course of a proceeding.  Where, as here, separate proceedings are related, the court should consider whether it should use its case management powers to achieve efficiency by ensuring that issues are resolved in one proceeding before costs are incurred in preparing for and conducting a trial of the same issues in another proceeding.  However, at the same time the court must be mindful to ensure that each proceeding is resolved as quickly as is consistent with the efficient and just resolution of the proceeding.

    [8]    Huntingdale Village Pty Ltd v Mallesons Stephens Jacques (No 2) (2014) 99 ACSR 225 at [21]. To this, I would add reference to the same principles in the authorities mentioned in footnote 1 of these reasons.

15. Judge Bochner concluded that there was no error in the Master relying upon these principles in the present case.  In particular, once the Master had determined that the outcome of the Supreme Court appeal would inform the manner in which the District Court proceedings would be prosecuted and defended, the Master did not err in exercising his powers of case management so as to reduce as far as possible the costs to be incurred by each party.[9]

    [9]    Viscariello v Tamasauskas [2018] SADC 29 at [47].

16. Finally, Judge Bochner also rejected the contention that the Master’s decision to grant a stay was unreasonable or plainly unjust.  In this respect, the Judge summarised the Master’s reasoning to the effect that a finding that Mr Phillips acted in breach was not determinative of whether there had been loss caused by that breach; that the issues pleaded in the defence would in part be determined by the outcome of the Supreme Court appeal given the defendant’s position that the value (or lack thereof) of the work performed by the deceased could not be quantified until the Supreme Court appeal had been determined, and the overall loss would be dependent upon (amongst other things) any costs orders made in relation to that appeal; that the continuation of the District Court proceedings prior to judgment in the Supreme Court appeal would involve the defendant being required to structure her defence on hypotheticals and alternatives, and hence result in a waste of the parties’ time and resources; and that the granting of a stay would thus be consistent with the objects of the Rules, namely the promotion of the efficient and just resolution of disputes. 

17. Judge Bochner concluded (at [52]):

    There is no error in the Master’s reasoning in this regard, nor does it lead to an outcome that is unreasonable or plainly unjust.  The stay is an interim one and will be lifted on application by one of the parties once judgment in the Supreme Court appeal has been delivered.  I accept the submissions of the defendant and the reasoning of the Master that the quantum of Mr Viscariello’s claim cannot be determined until the Supreme Court appeal has been decided, and that the defendant would be prejudiced in pleading its defence until those questions have been dealt with.  I further accept that as Mr Viscariello has acknowledged that his statement of claim will require amendment once the judgment in the Supreme Court appeal has been delivered, it would be a waste of resources if the defendant were required to finalise her defence now, as further amendment will be required in the future.

18. Judge Bochner thus dismissed Mr Viscariello’s appeal from the Master’s decision to order a stay of proceedings.

    Appeal requires permission

19. Mr Viscariello has now appealed the decision of Judge Bochner to a single Judge of the Supreme Court. While conceding that the decision appealed from relates to an interlocutory order, Mr Viscariello contends that he is nevertheless entitled to appeal as of right under s 50(5)(c) of the Supreme Court Act 1935 (SA). The defendant contends that Mr Viscariello’s appeal requires permission, and that permission to appeal should be refused.

20. Under s 43(2)(b) of the District Court Act, an appeal from an interlocutory judgment given by a Judge of the District Court lies to a single Judge of the Supreme Court.[10]  Section 43(3) provides that whether the appeal lies as of right, or by permission, is to be determined according to the rules of the appellate court.

    [10] Under s 43(2)(c), an appeal from a final judgment of a judge of the District Court lies to the Full Court of the Supreme Court.

21. The relevant rule in this respect is r 288 of the Supreme Court Civil Rules 2006 (SA).  It provides that “subject to any statutory provision to the contrary”, an appeal lies to the Court by permission of the Court if the judgment subject to appeal is, amongst other things, an interlocutory judgment of a Judge of the District Court (r 288(1)(a)(ii)) or a judgment given on appeal from an interlocutory judgment (r 288(1)(a)(iii)).

22. While accepting that permission would otherwise be required by reason of rr 288(1)(a)(ii) and (iii), Mr Viscariello relies upon the reference in r 288 to its operation being subject to any statutory provision to the contrary. As the notes to that rule make plain, s 50(5) of the Supreme Court Act is one such provision.  That section provides that the rules cannot require the Court’s permission for an appeal if the judgment under appeal, amongst other things, “grants or refuses relief in the nature of an injunction” (s 50(5)(c)).  Mr Viscariello contends that, despite its interlocutory status, the order granting a stay of proceedings in this case was nevertheless an order “in the nature of an injunction” with the result that an appeal lies to a single Judge of this Court as of right.  He relies in this respect upon the decision of the Full Court of this Court in Kowalski v R J Cole & Partners.[11]

    [11] Kowalski v R J Cole & Partners (2015) 122 SASR 320.

23. Before coming to consider Mr Viscariello’s reliance upon this decision, it is appropriate to say something further about the nature of the order under appeal, and the authorities preceding Kowalski v R J Cole & Partners.

    Nature of the order under appeal

24. It has been held on occasion that a permanent stay of proceedings on the basis that the contemplated proceedings would involve an abuse of process does, as a matter of reality, finally dispose of the parties’ rights, and as such may be treated as a final order for the purposes of determining whether an appeal from that order requires permission.[12]  On the other hand, in Re Luck, the High Court held that the focus must remain upon the legal effect of the order, and that a permanent stay on these grounds was thus interlocutory rather than final.[13]

    [12] Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35 at 38; Kermani v Westpac Banking Corporation (2012) 36 VR 130 at [89]-[90].

    [13] Re Luck (2003) 78 ALJR 177 at [4], [8]-[9].

25. In any event, regardless of whether a permanent stay, on the grounds that the contemplated proceedings would involve an abuse of process, is properly to be characterised as final or interlocutory, the stay sought and obtained in these proceedings was neither permanent nor on the grounds of an abuse of process.  While this much is clear, and was accepted by both parties, Mr Viscariello nevertheless objected, both before Judge Bochner and in this Court, to the description of the stay of proceedings ordered by Master Keith as an “interim” stay.  The basis for this objection appears to have been the absence of any fixed date upon which the stay was to be lifted or even reconsidered.

26. It may be accepted that Judge Bochner slightly overstated the position when her Honour said, in support of her conclusion that the stay was an interim one, that “the orders themselves specifically prescribe the time frame within which the stay will be lifted, that is, on the application of a party following the determination of the Supreme Court appeal”.[14]  However, to the extent that the precise characterisation of the stay ordered by the Master matters, the point that her Honour was making is an accurate one, namely that the stay was never intended to be, nor expressed to be, permanent in effect.  The stay was always intended to be, and expressed to be, temporary in nature, and indeed, by its rationale and its terms, contemplated that its continuation would be revisited following determination of the Supreme Court appeal.

    [14] Viscariello v Tamasauskas [2018] SADC 29 at [17], and to similar effect at [52] (extracted earlier in these reasons).

27. The temporary nature of the stay was inherent in the reasons for which it was sought and granted, namely the potential impact of the outcome of the Supreme Court appeal upon the conduct of the District Court proceedings, and the uncertainty in the conduct of those proceedings pending determination of that appeal.  But it was also inherent in the terms of the stay.  While paragraph 1 of the orders made by the Master was expressed in open-ended terms, it did include reference to “until further order”.  Properly understood, against the background of the nature of the application and the reasons given for making the order, this was a reference to the expectation that the continuation of the stay could be, and in all likelihood would be, revisited once the outcome of the Supreme Court appeal was known.  But to the extent there was any ambiguity about this, it was clarified by paragraph 2 of the orders, which expressly granted the parties liberty to apply upon determination of the Supreme Court appeal.

28. It is true that the stay would not be automatically be lifted, and that the contemplated application to revisit the stay would not necessarily be successful, but I do not understand Judge Bochner to have been intending to speak in absolute terms.  Rather, and with respect, I understand her Honour to have been intending to make the self-evident and accurate point that the stay was not only not intended to be a permanent one, but was also inherently likely to be revisited and lifted once the outcome of the Supreme Court appeal was known.

29. The temporary nature of the stay was significant when considering the Master’s exercise of the discretion to grant a stay, and the balancing of the interests of justice between the parties.  By not operating to permanently shut Mr Viscariello out of pursuing the rights sought to be pursued in the District Court proceedings, the prejudice to the interests of Mr Viscariello was limited.  Neither the fact that there was no automatic lifting of the stay, nor the fact that the success of any application was not necessarily guaranteed, undermine the force of the consideration just mentioned.  Nor does the fact that the Master at one point in his reasons contemplated that it may be appropriate to continue the stay for a further period while the parties considered whether they would pursue an application for special leave to appeal to the High Court from the orders made following the Supreme Court appeal.

    An order “in the nature of an injunction”?

1. Turning to the issue of whether the stay ordered in these proceedings was an order “in the nature of an injunction” for the purposes of s 50(5)(c) of the Supreme Court Act, a useful starting point is the following passage from Meagher, Gummow & Lehane’s Equity - Doctrines & Remedies:[15]

   Injunctions are court orders forbidding the person to whom they are addressed from doing something or commanding that person to do something.  This the textwriters habitually say.  Thus one leading authority said: ‘A writ of injunction may be described as a judicial process whereby a party was required to do a particular thing or to refrain from doing a particular thing according to the exigency of the writ.’ Another has it to the same effect: ‘An injunction is a judicial process whereby a party is ordered to refrain from doing or to do a particular act or thing’.  These descriptions are accurate enough in a general sense.  But it must never be forgotten both that they are accurate only in a general sense, and that they are descriptions, not definitions.[16]  For example, an order to one party to pay the other party’s costs, while within the literal words of the above quotations, would never be classified by an equity lawyer as an injunction.  And in Doulton Potteries Ltd v Bronotte, Hope J held that an order for the specific restitution of chattels was not an ‘injunction’ within the meaning of r 8A of the Fourth Schedule to the Equity Act 1901 (NSW). All court orders forbid or command one person to whom they are directed to refrain from doing something or to do something, but not all court orders are injunctions. Legal usage alone, and not logic, decides which court orders can, and which cannot, accurately be described as injunctions.

   [15] Meagher, Gummow & Lehane’s Equity – Doctrines & Remedies, 2015, 5^th ed, at [21-005] (omitting citations).

   [16] CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 390.

2. In Rouse v IOOF Australia Ltd (No 2),[17] Lander J made orders which, inter alia, required that the defendant deliver up to his Honour’s associate all copies of certain identified documents in the possession, custody or power of the defendant and its legal advisors. The orders were made on an interlocutory application in which the plaintiffs claimed legal professional privilege over, and delivery up of, the documents in question. The defendant brought an appeal which it contended lay as of right. In dismissing the appeal as incompetent, Lander J held that the orders were not only interlocutory, but also did not involve an injunction for the purposes of s 50 of the Supreme Court Act.

   [17] Rouse v IOOF Trustees Ltd (No 2) [1999] SASC 205.

3. In explaining the latter conclusion, Lander J accepted that while the Court had an equitable jurisdiction to protect, and prevent divulgence of, confidential communications, nevertheless the plaintiffs had not invoked that jurisdiction.  Rather, the jurisdiction his Honour had exercised derived from the inherent jurisdiction of the Court to regulate its own affairs, to regulate the proceedings before the Court and to prevent an abuse of its processes.  As his Honour explained, there were many orders which are mandatory in nature, and binding upon a party, which could not be said to be injunctions.  His Honour gave as examples orders made requiring parties to file and deliver pleadings, make discovery, give inspection and answer interrogatories.  His Honour also gave the example of an order requiring that a party make available a document for inspection and copying, whether by the other party or the Court. 

4. After referring to the above passage from Meagher, Gummow & Lehane’s Equity – Doctrines & Remedies,[18] Lander J said that the examples he had listed were examples of adjectival or procedural orders commonly made for the purposes of regulating the parties’ conduct in legal proceedings. They did not involve any undertaking usually given as the price of an injunction. They were not drawn up as injunctions, did not need to be served personally to have effect and did not need to carry the endorsement that the rules required in the case of an injunction. For all of these reasons, they were not injunctions “as the term is commonly understood and as the term is used” in s 50 of the Supreme Court Act.[19]

   [18] Or at least its equivalent from an earlier edition.

   [19] Rouse v IOOF Australia Trustees Ltd (No 2) [1999] SASC 205 at [55]-[60].

5. His Honour held that the same was true of the order made in that case.  The order was an adjectival or procedural order requiring the delivery up of documents which he had found to be the subject to legal professional privilege.  His Honour concluded that “the order was not, in my opinion, in the nature of an injunction as that term is understood” in s 50 of the Supreme Court Act.[20]  The defendant’s appeal was thus incompetent.

   [20] Rouse v IOOF Australia Trustees Ltd (No 2) [1999] SASC 205 at [63]-[64] (emphasis added).

6. I observe in passing that subsequent to the decision in Rouse v IOOF Australia Trustees Ltd (No 2), and with effect from 4 September 2006, s 50 of the Supreme Court Act was amended. While the section as amended is similar in its substantive effect, the structure and terms of the section were substantially amended. Of present significance is the amendment to the circumstances in which leave (now referred to as permission) may be required to appeal from an interlocutory order. Prior to 4 September 2006, s 50 relevantly provided that no appeal lay without leave from an interlocutory judgment except where “an injunction … is granted or refused” (s 50(3)(b)(iii)). Since 4 September 2006, the amended s 50 relevantly provides that the rules cannot require the court’s permission for an appeal if the judgment under appeal “grants or refuses relief in the nature of an injunction” (s 50(5)(c)) (emphasis added).  Thus, the issue before Lander J in Rouse v IOOF Australia Trustees Ltd (No 2) was whether the order was “an injunction”, as opposed to an order “in the nature of an injunction”.  That said, as set out above, Lander J in fact expressed himself in terms of a conclusion that the order in question was not an order “in the nature of an injunction”.

7. The decision of Lander J in Rouse v IOOF Australia Trustees Ltd (No 2) was applied by the Victorian Court of Appeal in Total Trading SRL v Nastri.[21]  In that case, in holding that leave to appeal was required, the Court reasoned that an application to restrain the use of certain documents, and for an order that those documents be delivered up, was not an application for an injunction.  Similarly, the order refusing the relief sought was not only interlocutory in nature, but also not an injunction.  Referring to the above passage from Meagher, Gummow & Lehane’s Equity – Doctrines & Remedies, and the reasoning of Lander J in Rouse v IOOF Australia Trustees Ltd, the Court held that the application sought merely “to regulate the use of the disputed documents in the principal proceedings” and was not an injunction “in the legal sense”.[22]

   [21] Total Trading SRL v Nastri [2007] VSCA 244.

   [22] Total Trading SRL v Nastri [2007] VSCA 244 at [9].

8. In Manos v Maras,[23] the parties were Mr Maras (the first plaintiff) and various companies controlled by him, Mr Manos (the first defendant) and various companies controlled by him, and various companies (including a company known as Rundle East) jointly controlled by both men.  The proceedings involved a dispute in relation to the exercise of a call option to purchase a property of which Rundle East was the lessee.  On an interlocutory application filed by the plaintiffs, the primary judge made orders which in effect (i) authorised Mr Maras to take the steps required for Rundle East to give notice of the exercise of the option under the lease; (ii) authorised Mr Maras on behalf of Rundle East to negotiate a price for the purchase of the property; and (iii) provided that neither Mr Maras nor Rundle East were to agree the purchase price or enter into an agreement to purchase unless and until the Court authorised them to do so.  In other words, the orders authorised Mr Maras to take limited steps towards the possible exercise of the option.

   [23] Manos v Maras [2007] SASC 192.

9. In holding that these orders did not grant relief “in the nature of an injunction” for the purposes of s 50(5)(c) of the Supreme Court Act, Bleby J (with whom Vanstone and Layton JJ agreed) described the orders made by the primary judge in the following terms:[24]

   Paragraphs 1 and 2 of the order of 20 April are facultative only.  They are not in the form of an injunction.  They do not require anyone to do anything or prevent anyone from doing anything.  By implication, the first order prevents Mr Manos from countermanding any notice that Mr Maras may give, but any such countermanding, if given, would probably be ineffective anyone once a valid notice is given.  The second order, by implication, prevents Mr Manos from negotiating a price on behalf of Rundle East.  It does not prevent him from making known either to Mr Maras or to the lessor his view as to an appropriate price for Rundle East to pay on the exercise of the call option, nor does it prevent him from assisting Mr Maras in the negotiations.

   The third order provides a significant guide as to the nature and purpose of the orders.  It ensures that agreement cannot be reached as to price nor any notice of exercise of the call option given without the approval of the Court.

   [24] Manos v Maras [2007] SASC 192 at [32]-[33].

10. After referring to the description of injunctive relief from Meagher, Gummow & Lehane’s Equity – Doctrine & Remedies extracted earlier in these reasons, Bleby J concluded:[25]

    As already noted, the orders under appeal require no-one to do anything or to refrain from doing anything other than to return to the Court to obtain approval for any further step.  They are not orders in the nature of an injunction.

    [25] Manos v Maras [2007] SASC 192 at [52].

11. In Kowalski v R J Cole & Partners, the appellant brought proceedings seeking to tax his legal costs against the respondent law firm.  A Master found that the appellant was seeking to use the taxation process for a purpose for which it was not designed, namely to argue that he had no liability at all to pay any legal costs to the respondent, and to seek the recovery of amounts previously paid to the respondent on the grounds of the absence of any retainer, fraud, theft and various other types of wrongdoing.  In other words, in proceedings designed to determine the quantum of costs owing, the appellant was seeking to contest his liability for costs, and to do so in circumstances where there had already been a long history of litigation in relation to the underlying liability for costs.  The Master ordered a stay of the appellant’s proceedings on the basis that it was an abuse of process.

12. The appellant unsuccessfully appealed the Master’s order to a single Judge of this Court.  He then brought a further appeal to the Full Court of the Supreme Court.  It appears that the matter proceeded to argument as though it were an appeal as of right without the issue of permission to appeal being raised by either party. 

13. However, Bampton J, in her reasons, took the view that the order staying the proceedings was an interlocutory order, and that permission to appeal was required. Her Honour did not give any express consideration to the potential operation of s 50(5)(c) of the Supreme Court Act.  After noting the background to the proceedings, and the fact the appellant had already had two judicial officers consider the appropriateness of the stay, her Honour considered that there was no merit in the appeal and that it was thus appropriate to refuse permission to appeal.

14. Gray and Sulan JJ, in a joint judgment, took a different view on the question of whether permission to appeal was required.  Their Honours first set out their reasons for dismissing the appeal on its merits.  However, after then noting the reasons of Bampton J, and that the appeal had proceeded as an appeal without any party or the Court expressly raising the issue of permission, their Honours considered it appropriate to make some observations on the issue of whether permission to appeal was required.

15. Their Honours commenced their observations by expressing their view[26] that as a matter of reality the stay ordered by the Master finally disposed of the rights of the parties and was thus a final order.[27] However, their Honours added that, even if not a final order, the stay on the basis that the proceedings were an abuse of process was an order “in the nature of an injunction” for the purposes of s 50(5) of the Supreme Court Act.[28]

    [26] By reference to the decision in Port Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35 at 38, and with footnoted references to Re Luck (2003) 78 ALJR 177 and Kermani v Westpac Banking Corporation (2012) 36 VR 130 at [89]-[90].

    [27] Kowalski v R J Cole & Partners (2015) 122 SASR 320 at [38].

    [28] Kowalski v R J Cole & Partners (2015) 122 SASR 320 at [39], [42].

16. In reaching this conclusion, Gray and Sulan JJ referred to the reasons of Lander J in Rouse v IOOF Australia Trustees. While agreeing with Lander J’s analysis of the distinction between injunctions and other orders which have the effect of requiring or forbidding conduct, Gray and Sulan JJ noted that as a result of the amendment to s 50, the question was no longer whether the order sought to be appealed was “an injunction”, but rather whether it was “in the nature of an injunction”.[29]  Their Honours then extracted the key passages from the reasons of Bleby J in Manos v Maras leading to his Honour’s conclusion that the orders in that case were not orders in the nature of an injunction.[30]  Without any further discussion or explanation, their Honours expressed their conclusion as follows:[31]

    For reasons earlier expressed, we agree with the Master and the judge on appeal that the purpose of Mr Kowalski’s application was to deny liability for costs to RJ Cole & Partners in this Court through the taxation process.  The order does not satisfy the requirements of an equitable injunction contemplated by Lander J and the authors of Equity Doctrines and Remedies, however, that is not what the Supreme Court Act, in its present form, requires.  The Act requires that the order be “in the nature of an injunction”.  Mr Kowalski can take no further step in the application – he is restrained from engaging in his desired course of action.  The order is not facultative, nor is the restraint incidental.  The very purpose of the order is to prevent Mr Kowalski from proceeding with his application.  Insofar as the order may not finally resolve the parties’ rights and liabilities, it prevents Mr Kowalski from taking the matter any further.  Accordingly, the order is in the nature of an injunction.  In our view, Mr Kowalski’s appeal was as of right and permission to appeal was not required.

    [29] Kowalski v R J Cole & Partners (2015) 122 SASR 320 at [39]-[40].

    [30] Kowalski v R J Cole & Partners (2015) 122 SASR 320 at [41].

    [31] Kowalski v R J Cole & Partners (2015) 122 SASR 320 at [42].

17. Given Gray and Sulan JJ’s view that the stay ordered in that case was a final order, and hence that an appeal lay as of right in any event, their observations as to the meaning to be given to an order “in the nature of an injunction” for the purposes of s 50(5) of the Supreme Court Act were, strictly speaking, obiter dicta.  They were also made without the benefit of submissions from the parties.

18. I have some reservations about accepting that even a permanent stay of proceedings on the ground that proceedings are an abuse of process may properly be characterised as an order in the nature of an injunction.  Given their Honours’ acceptance of the analysis of Lander J in Rouse v IOOF Australia Trustees Ltd, Gray and Sulan JJ’s characterisation of a stay as an order in the nature of an injunction must have rested entirely upon the inclusion of the words “in the nature of” within s 50 as a result of the 2006 amendments to that section. This would be to give those words very significant, and in my view somewhat surprising, work to do in circumstances where there is no suggestion in the second reading speech in relation to those amendments that any such change was intended. In circumstances where the amendment to include the words “in the nature of” was part of a more general restructuring of s 50, and updating of its language, it is not self-evident that their inclusion was intended to effect a significant change in meaning, as opposed to being a mere difference in expression explicable at least in part by the different structure and syntax of the amended section.

19. But even if it be accepted that the addition of the words “in the nature of” was intended to ensure that a broad meaning be given to the reference to an injunction, I am not persuaded it was intended to sweep aside the distinction drawn by Lander J between orders generally described as injunctions and other orders requiring that a person do something, or refrain from doing something.  That is particularly so in circumstances where Lander J in fact expressed himself in terms of orders “in the nature of” an injunction, and where the distinction was apparently endorsed by the Full Court in Manos v Maras in the context of the amended legislation, given Bleby J’s reference in that case to the passage extracted earlier from Meagher, Gummow & Lehane’s Equity – Doctrines & Remedies.

20. In any event, it is not necessary for me to express a concluded view as to whether a permanent stay of proceedings on the grounds that they involve an abuse of process does, or might, constitute an order “in the nature of an injunction”.  Even allowing for that possibility, and hence assuming the correctness of the reasoning of Gray and Sulan JJ in Kowalski v RJ Cole & Partners on this issue, I do not accept that the stay of proceedings ordered in this case was an order “in the nature of an injunction”.

21. Certainly the stay ordered by the Master in this case did not have the form, or formal trappings, of an injunction.  It was not accompanied by any undertaking as to damages.

22. Further, unlike the stay in Kowalski v RJ Cole & Partners, the stay in these proceedings was intended and expressed to be a temporary stay.  As explained earlier, it was inherent in the reasons for the stay, and the terms of the stay, that it would in all likelihood be reconsidered once the outcome of the Supreme Court appeal was known, and would in all likelihood be lifted. 

23. In addition, and again unlike the stay in Kowalski v RJ Cole & Partners, the stay in the District Court proceedings was not a stay based upon a conclusion that the plaintiff was engaged in an abuse of process.  The stay was based upon a view taken by the Master as to how the proceedings might be most expediently conducted, and where the balance between the competing interests of the parties lay in this respect.  It is true that an aspect of this reasoning was that it would involve an inefficient (although not necessarily abusive) use of the parties’ and Court’s time and resources to progress the District Court proceedings prior to the outcome of the Supreme Court proceeding.  But there remains a significant difference between the rationale for, and effect of, the respective stays in Kowalski v RJ Cole & Partners and the present proceedings.  The stay in the former was more closely directed to the conduct of the plaintiff in attempting to pursue the proceedings at all.  The stay in the latter was more closely directed to the orderly and efficient conduct of the proceedings.[32]  While it had the effect, inter alia, of preventing Mr Viscariello from advancing the proceedings at the timing and speed of his choosing, it did not have the effect of preventing him from advancing the proceedings in due course.  The stay in these proceedings was more akin to an adjournment of the proceedings until a contemplated event had occurred than an indefinite barring of Mr Viscariello from ever advancing the proceedings. 

    [32] As to the significance of the difference between a permanent and temporary stay, and the more natural characterisation of the latter as relating to the management of the court’s processes, see the authorities referred to in footnote 1 above.

1. In my view, taking into account both the form and substance of the orders made by the Master, they cannot properly be characterised as an order “in the nature of an injunction” for the purposes of s 50(5) of the Supreme Court Act.  It follows that permission to appeal is required.

   Permission to appeal should be refused

2. Permission to appeal from an interlocutory order requires consideration of both whether the decision below is attended by sufficient doubt to warrant its reconsideration on appeal, and whether substantial injustice would be caused to the applicant for permission were the decision left to stand.[33]

   [33] Harris Scarfe Ltd v Ernst & Young(No 2) (2005) 240 LSJS 17; [2005] SASC 168 at [4]-[11]; Landmark Operations Ltd v J Tiver Nominees Pty Ltd [2009] SASC 185 at [21]; ACN 115 722 248 Pty Ltd v Milligan [2011] SASC 239 at [9]; Testel Australia Pty Ltd v Rickard [2015] SASC 174 at [2].

3. In considering whether the decision below is attended by sufficient doubt, it is relevant that the decision related to the exercise of a discretion.  The prospect of establishing error must thus be considered through the prism of the principles of appellate restraint articulated in House v The King.[34]  Further, in considering the risk of substantial injustice were the decision left to stand, it is relevant not only that the decision sought to be appealed relates to a matter of practice and procedure, rather than a matter of substantive significance to the parties, but also that it has already been the subject of two judicial determinations. 

   [34] House v The King (1936) 55 CLR 499 at 504-505.

4. For the reasons set out later, I am not satisfied that the appeal has sufficient merit to warrant appellate consideration. 

5. However, and equally importantly for the purposes of determining whether permission to appeal should be granted, I am not satisfied that it would occasion Mr Viscariello any substantial prejudice were the decision to order a stay left to stand.  Even putting to one side that the stay order involved merely a matter of practice and procedure, was temporary in its effect and has been the subject of two judicial determinations, there is a more fundamental difficulty for Mr Viscariello’s application for permission to appeal.  That difficulty is that the event that justified the temporary stay has now occurred.  The Supreme Court appeal has been determined, with judgment having been delivered some months ago now.  There is nothing to stop Mr Viscariello now applying to have the stay lifted.  Indeed, not only is there nothing to stop him doing so, that is precisely what the Master’s reasons and orders contemplated would occur.  When asked by me why he has not taken this course, Mr Viscariello acknowledged that this course is open to him, but said that there was no guarantee he would succeed in having the order lifted, and that he was in any event entitled to pursue his rights by way of appeal.  The only other matter advanced by Mr Viscariello in support of his decision to pursue an appeal, rather than an application to have the stay lifted, was that it might also have an impact upon his liability for costs in respect of the hearings below.

6. 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.

7. 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.

8. 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.

9. For all of these reasons, I am not satisfied that this is an appropriate case in which to grant permission to appeal.

   Merits of the appeal

10. Given my conclusion that permission to appeal is required, and that permission should not be granted, it is of course not necessary for me to address the ultimate merits of the appeal.  However, because some consideration of the merits was necessary for the purposes of determining the issue of permission, and because the merits were the subject of full written and oral submissions from the parties, I propose to set out my reasons for determining that the appeal should, in any event, be dismissed on the merits.

11. In presenting his submissions on appeal, Mr Viscariello tended to lose sight of the fact that while his appeal was from the decision of Judge Bochner, in order for him to succeed he ultimately needed to establish error on the part of Master Keith in the exercise of his discretion to grant a stay.  Judge Bochner did not exercise the discretion afresh.  While the appeal before her Honour, like the present appeal, was an appeal by way of rehearing, her Honour was nevertheless required to find error before the appeal could be allowed, and because the decision under appeal was a discretionary one, this required error in the House v The King sense.  While this does not mean that a consideration of Judge Bochner’s reasons was irrelevant, nevertheless the relevance of her Honour’s reasons needed to be understood in that context. 

12. By way of illustration of this point, Mr Viscariello challenged the accuracy of paragraph [52] of Judge Bochner’s reasons, which I have extracted earlier in these reasons.

13. The first limb of this challenge related to her Honour’s statement that the stay “will be lifted” once judgment in the Supreme Court appeal has been delivered.  For the reasons explained earlier, I am not satisfied that her Honour misunderstood the nature and terms of the stay ordered.  But even if she had, this would not provide a basis for concluding that the Master’s discretion miscarried, for there is no reason to think that his Honour was labouring under any misapprehension in this regard. 

14. The second limb of this challenge related to her Honour’s reference to Mr Viscariello having acknowledged that his claim will require amendment once the judgment in the Supreme Court appeal has been delivered.  This was apparently a reference to paragraphs 3.6 and 3.7 in Mr Viscariello’s fourth affidavit (dated 28 July 2017), also extracted earlier in these reasons.  As Mr Viscariello pointed out, in those paragraphs he did not acknowledge a need to replead after judgment had been delivered in the Supreme Court appeal.  Rather, while acknowledging a need to replead, he was claiming to already be in a position to do so as a result of the appeal having by that time been heard and hence, by implication, did not need to await the delivery of judgment in the Supreme Court appeal. 

15. The significance of the overstatement of Mr Viscariello’s acknowledgement, however, is limited.  The first reason for this is that even the acknowledgement he did make involved a concession that the conduct of the appeal was relevant to a proper consideration of the loss he was claiming.  And once it is accepted that the conduct of the appeal is relevant, then it is only a short step to conclude that the outcome may also be relevant (at least from the defendant’s perspective).  The second reason for this is that ultimately Judge Bochner (like the Master) was persuaded that the defendant wished to raise and plead matters that would be impacted by the outcome of the Supreme Court appeal, and so any concession by Mr Viscariello as to how he intended to run the matter probably did not add much. 

16. But in any event, and more fundamentally, whatever the significance of any misunderstanding by Judge Bochner as to the acknowledgement made by Mr Viscariello, this was not a matter that affected the Master’s exercise of his discretion.  The Master made express reference to the acknowledgement in paragraph [24] of his reasons, and in so doing accurately summarised its effect and significance.  The Master returned to the issue in paragraph [59] of his reasons, and noted Mr Viscariello’s acceptance that he intended to claim “much of the fees” he had incurred, but by implication not all of the fees he had incurred.  The Master did not wrongly attribute any concession to Mr Viscariello to the effect that he needed to know more in order to quantify his claim.  Rather, his Honour confined himself to a related but accurate conclusion, namely that the defendant would be better informed in her response to the claimed quantum once the outcome of the Supreme Court appeal was known.

17. It follows that neither of the challenges to paragraph [52] of Judge Bochner’s reasons provides any basis for concluding either that the Master erred in the exercise of his discretion, that Judge Bochner erred in dismissing the appeal, or that the appeal to this Court should be allowed.

18. The balance of the complaints pursued by Mr Viscariello on appeal relate to contended error on the part of the Master (and Judge Bochner) in relying upon a connection between the District Court proceedings and the Supreme Court appeal, and are in substance a repetition of the arguments made before Judge Bochner, as summarised in paragraph [43] of these reasons. 

19. I have summarised Judge Bochner’s reasons for rejecting these interrelated arguments.  I agree with, and adopt, Judge Bochner’s reasoning in this regard. 

20. I would add that while the existing pleadings are relevant, they should not be construed narrowly in the present context and are, in any event, not determinative of the issues presently relevant.  In assessing the likelihood and extent of any connection between the District Court proceedings and the outcome in the Supreme Court appeal, regard must be had to the likely or potential course and conduct of the District Court proceedings. 

21. In circumstances where the correspondence from Mr Viscariello immediately prior to the institution of the District Court proceedings contended that the outcome of the Supreme Court appeal, and Mr Viscariello’s loss, might be significantly affected by his ability to retain, and the quality of, his alternate counsel, and his pleading was in terms of loss which was “ongoing” and “including” the matters pleaded, it is not difficult to foresee issues arising in the District Court proceedings which might be informed by the outcome of the Supreme Court appeal.

22. During the course of submissions in this Court, Mr Viscariello expressly disavowed any reliance in his claim, or alleged loss, upon his change of counsel having had an impact upon the outcome of the Supreme Court appeal.  The defendant claimed that this had not previously been made clear, and that the pleadings did not make this confinement of Mr Viscariello’s claim clear. 

23. In any event, regardless of the precise case, and alleged loss, to be advanced by Mr Viscariello, the critical point is that, as the Master and Judge Bochner held, the defendant’s response to Mr Viscariello’s claim, even if that claim is confined to wasted costs, will likely be informed by the outcome of the Supreme Court appeal.  The outcome of the Supreme Court appeal is likely to shed some light upon what costs, if any, might be recoverable by Mr Viscariello, and the extent to which the fees paid to Mr Viscariello and the replacement counsel have been wasted.  It is true, as Mr Viscariello points out, that these matters do not currently find voice in the defence, except to the extent that they are encompassed within the general denial that Mr Viscariello suffered the loss claimed, or any loss at all.  But this is entirely consistent with the very point made by the defendant, namely that she would not be in a position to plead such matters in an appropriate way at least until the outcome of the Supreme Court appeal was known.

24. For all of these reasons, I am not satisfied that the Master erred in ordering a temporary stay based upon the connection between the District Court proceedings and the Supreme Court appeal, or that Judge Bochner erred in dismissing the appeal from the Master’s decision.  A stay of proceedings, even if only temporary in effect, will not lightly be granted because to do so will involve some level of interference with a plaintiff’s usual entitlement to pursue their legal rights through litigation in the ordinary course.  However, the Court retains a broad power and discretion to control its own processes, including so as to ensure the orderly and efficient conduct of litigation.  In circumstances where the orderly and efficient conduct of litigation will be assisted by knowledge of the outcome in other proceedings, or indeed other information to be gleaned from some other external event, the Court may consider it appropriate to adjourn, stay or otherwise manage the progress of the subject proceedings pending the occurrence of that outcome or event.  In my view, it was within the Master’s discretion to grant the temporary stay that he granted in these proceedings.

    Conclusion

25. In my view, the within appeal requires permission.  I would refuse permission.  I would in any event have dismissed the appeal on its merits. 

26. The order of the Court will be:

    1.   Permission to appeal refused.