Viscariello v TAMASAUSKAS

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

VISCARIELLO v TAMASAUSKAS

[2018] SADC 29

Judgment of Her Honour Judge Bochner

6 April 2018

PROCEDURE - INFERIOR COURTS - SOUTH AUSTRALIA - DISTRICT COURT

Appeal from a Master - Stay of Proceedings - whether appropriate to grant stay of proceedings - whether stay interim or final.

Costs - whether appellant denied procedural fairness in making of order for indemnity costs.

Held

1. Appeal in relation to stay of proceedings dismissed.

2. Appeal in relation to costs allowed.

Beare v Light Regional Council [2008] SADC 72; Huntingdale Village Pty Ltd (recs and mgrs apptd) v Mallesons Stephen Jacques (No. 2) [2014] WASC 60; McLean v DID Piling Pty Ltd [2010] SASC 94; Viscariello v Legal Profession Conduct Commissioner [2017] SASCFC 98; Savings & Investment Bank Ltd v Gasco Investments (Netherlands) BV (No 2) [1988] Ch 422; House v R (1936) 55 CLR 499, considered.

VISCARIELLO v TAMASAUSKAS
[2018] SADC 29

1. In September 2016, the plaintiff Mr Viscariello issued proceedings for breach of retainer and breach of duty against the administrator of the estate of Mr Andrew Phillips. For ease of convenience, I will refer to the administrator as the defendant and to Mr Phillips as the deceased. At the time of his death on 24 March 2016, the deceased had been engaged as counsel by Mr Viscariello in long-running proceedings in the Supreme Court of South Australia. Those proceedings had been concluded at first instance, and an appeal and cross-appeal had been listed to commence on 4 April 2016. I note that in the proceedings at first instance the plaintiff was Mr Viscariello. On the appeal and cross-appeal, he was the respondent and cross-appellant. As a result of the deceased’s death, the listing for the appeal was vacated. For sake of convenience, I will refer to the appeal and cross-appeal simply as “the Supreme Court appeal”. I will refer to the hearing before me as “the appeal”.

2. At the time that Mr Viscariello instituted this proceeding, the Supreme Court appeal had been relisted to commence on 7 November 2016. This date was subsequently vacated, and the Supreme Court appeal was finally commenced on 13 February 2017.

3. On 11 November 2016 the defendant filed an application for the stay of this proceeding, pending the outcome of the Supreme Court appeal. The defendant’s position was that neither party should be put to the expense of progressing this matter because, until the Supreme Court appeal had been determined, it was not possible:

   1.   to determine the quantum, if any, of Mr Viscariello’s claim for loss attributed to the need to retain fresh counsel and solicitors;

   2.   to determine whether Mr Viscariello had suffered any other loss, such as loss caused by adverse cost orders or loss caused by the lack of the deceased’s presence (as opposed to the lack of counsel generally). In this regard, the defendant argued that, in the event that Mr Viscariello was unsuccessful on the Supreme Court appeal,…