Viscariello v TAMASAUSKAS - [2018] SADC 29

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

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”.
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.
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, he was in effect asking the Court in this proceeding to look behind the judgment of the Full Court to determine whether the services of the deceased were material to the outcome of the Supreme Court appeal;
3.   to determine whether any loss suffered by Mr Viscariello would be recoverable by way of cost orders in his favour.
Thus, the defendant says that the plaintiff’s claim in relation to quantum is unparticularised, and must remain so, until the Supreme Court appeal has been determined. A consideration of the merits of Mr Viscariello’s claim would thus occur in a vacuum.
The application for the stay was opposed by Mr Viscariello, on the basis that this matter was a simple breach of retainer matter, and not dependent on the outcome of the Supreme Court appeal. His position was that it was not unusual for claims to be brought while quantum was yet unquantified and had not been fully particularised. That was not a reason in itself to stay the whole action while awaiting the outcome of the Supreme Court appeal. Mr Viscariello also disagreed that he was asking this Court to look behind the judgment of the Full Court in the event that he was unsuccessful on the Supreme Court appeal.
The defendant’s application was heard by the Master on 11 August 2017. On 5 September 2017, the Master made the following orders:
1. This action be stayed until further order pursuant to r192 of the District Court Civil Rules 2006.
2. Liberty to the parties to apply upon determination of the appeal and the cross-appeal in Supreme Court proceedings, Viscariello v Macks, SCCIV‑06-165.
3. I will hear the parties as to costs of the application (FDN9), including the ruling on evidence.
4. Adjourned for further directions to Monday 11 September 2017 at 3pm.
On 7 September 2017, Mr Viscariello filed his notice of appeal against those orders. On 11 September 2017, when the matter came on for further directions, the Master made an order that Mr Viscariello pay the defendant’s costs on an indemnity basis. On 5 October 2017, Mr Viscariello purported to file a second notice of appeal, in which he inserted additional grounds for appeal in relation to the orders made on 5 September 2017, and appealed from the costs order made on 11 September 2017.
The issues on appeal from the Master’s decision were argued before me on 14 December 2017. On 22 December 2017 the Full Court delivered its decision on the Supreme Court appeal. Despite that decision now having been delivered, the parties have indicated that they require a decision to be made on this matter.
Three preliminary issues
Before I deal with the merits of the appeal, there are three preliminary issues that need to be dealt with. The first is whether Mr Viscariello is entitled to rely on his second notice of appeal; the second is whether the stay imposed by the Master was an interim stay or a final stay; the third is whether the defendant is bound by the obligations of a model litigant.
Is Mr Viscariello entitled to rely on the Second Notice of Appeal?
I note that on 17 October 2017, Mr Viscariello filed an application seeking leave to rely on his second notice of appeal. Mr Viscariello’s argument, in relation to this issue was that, as he had no way of knowing when the appeal was going to be listed for hearing, it was impossible for him to know the time frame within which he could amend his notice of appeal without leave. Without setting out his somewhat convoluted argument in full, Mr Viscariello argues that, because the procedure to appeal from the decision of a Master lacked the framework surrounding an appeal from a judge, he was caught unawares when this appeal was listed, and thus missed his opportunity to amend without leave.
As to his reasons for his late amendments (other than not being aware and having no ability to make himself aware of the actual time frames involved) Mr Viscariello relied on the death of his father in the period between the making of the cost order and the filing of the second notice to appeal, and the short period of delay in filing the second notice.
The defendant submitted that Mr Viscariello should not be entitled to rely on the second notice of appeal. This was on the basis that it was filed out of time, an extension of time for filing was not sought and it does not comply with Rule 294 of the District Court (Civil) Rules 2006 (the Rules), dealing with amendments.
In my view, Mr Viscariello should be entitled to rely on the second notice of appeal. While I do not necessarily accept the arguments made by Mr Viscariello in relation to the Rules, I do not consider that the defendant is prejudiced by its irregularities. It was filed on 5 October 2017, more than two months before the hearing of this matter, thus giving the defendant sufficient notice of the case he was to argue. I also take into consideration the fact that Mr Viscariello is unrepresented, and that his father died during the period between the making of the costs orders and the filing of the second notice of appeal. In those circumstances, it is reasonable to allow reliance on it.
Is the stay imposed by the Master an interim stay or a final stay?
Mr Viscariello submitted that the order made by the Master was, in effect, a permanent stay. He says that in the Master’s reasons, it was made clear that the stay was permanent in nature:
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.[1]
[1] SADC Decision No. 30/2017 at [63].
Mr Viscariello says that the effect of this is that the stay would not be automatically lifted once the Full Court had delivered its decision.
The defendant, on the other hand, submitted that the natural meaning of the words, both in the Master’s reasons and in his orders, is that the stay is an interim one. The Master has clearly tied the stay to the delivery of the judgment by the Full Court, with liberty to apply on that event occurring. This cannot be construed as a permanent stay.
I am of the view that the stay ordered by the Master was an interim stay. 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 before the Full Court. The ordinary meaning of these words is that the stay is predicated on that event.
The stay is an interim one.
Is the defendant bound by the obligations of a model litigant?
Mr Viscariello made various submissions as to the defendant’s need, and failure to comply with the obligations of a model litigant. I do not consider that this question has any bearing on this appeal; whether the defendant has the obligations of a model litigant and has breached those obligations, is not relevant to questions of any error on the part of the Master. Thus, I do not address this question further.
The Master’s decision
The Master commenced by setting out the history of the Supreme Court proceeding and this proceeding. He then provided a summary of the submissions made by each party. From [38], he discussed the relevant Rule, and its application, as set out in Beare v Light Regional Council.[2]
[2] [2008] SADC 72.
The Master then examined the decision of Huntingdale Village Pty Ltd (recs and mgrs apptd) v Mallesons Stephen Jacques (No. 2)[3] (Huntingdale), on which the defendant relied, and which the plaintiff sought to distinguish. He summarised the plaintiff’s arguments and reached his conclusion in the following way:
In the written submissions for the plaintiff (FDN 23) and commencing at paragraph 51, the plaintiff sought to distinguish Huntingdale. The plaintiff asserts that where his claim turns on the fact that Mr Phillips breached his special retainer, as a consequence of which the plaintiff suffered loss and damage by incurring additional solicitor and counsel fees that he would not otherwise have incurred if Mr Phillips had appeared at the Full Court hearing, then the issues to be decided by the Full Court have no relevance to the claim and the reasoning in Huntingdale is not applicable.
In my view, the decision in Huntingdale cannot be distinguished on that basis. The submission by the plaintiff at paragraph 51(b) (page 15 of (FDN 23)), seeks to assert that the additional legal costs are incurred as a consequence of the breach of retainer as if such a sequence of reasoning required no further consideration of facts. However, such a view does not take into account the need for there to be evidence and proof of necessary facts from which the causation of loss and the proposition that the additional costs were in fact “as a consequence of” the breach of retainer must be established. The decision in Huntingdale does appear to have application in the sense that the outcome of the Full Court appeal will direct the claim and the evidence in relation to the claim in these proceedings.
Mr Viscariello made further submissions to distinguish Huntingdale on a further basis. At [24] of the decision in Huntingdale, the Western Australian Supreme Court observed that a stay would not cause any prejudice to the plaintiffs because the plaintiffs had not paid the fees. Mr Viscariello pointed out that he had in fact paid all of the counsel fees claimed and has also paid the fees for counsel who did appear at the hearing of the Full Court. To that extent, the absence of prejudice to the plaintiff is a factor that would distinguish Huntingdale from the present situation. However, as I have indicated, the issue of prejudice is not a determining factor. The prejudice to Mr Viscariello is but one factor. The prejudice to the defendant is a further factor.
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 appeal and cross-appeal by the Full Court 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.[4]
[3] [2014] WASC 60.
[4] SADC Decision No. 30/2017 at [45]-[48].
The Master then reviewed other authorities outlining the principles to be considered when determining whether a stay should be ordered. He specifically noted that relevant to his decision was the fact that a permanent stay was not sought, only a limited stay until determination of the Supreme Court appeal.
The Master concluded:
The plaintiff opposes any stay of the proceedings in reliance on an assumption that the case to be made in the District Court proceedings is one of a direct cause and effect. It is asserted that the failure of Mr Phillips to conclude his retainer and to appear at the hearing of the Full Court, has caused loss and damage. In my view, such a direct cause and effect conclusion is not self-evident. The conduct of the plaintiff’s case is, of course, only one part of the conduct of the District Court proceedings. It is evident from the submissions and the affidavits of Mr Iles, which have been admitted into evidence, that the defendant will plead issues by way of defence in this action arising from the outcome of the Full Court appeal and cross-appeal. In my view, it cannot be correct to oblige the defendant to conduct its defence to this claim in the absence of knowledge of the outcome of the Full Court appeal and cross-appeal.
Analysis of the issues raised in the Full Court proceedings will be a necessary part of consideration of whether any of Mr Phillips’ costs have been of value to Mr Viscariello. It ought not to be assumed that all of the costs paid to Mr Phillips are wasted legal costs. Similarly, it ought not to be assumed that all of the work done by the new legal team to represent Mr Viscariello in the Full Court, are necessarily recoverable as damages. A review of the decision of Kourakis CJ in Viscariello v Macks [2014] SASC 189, presents the range of significant issues to be dealt with by the Full Court.
To a limited extent, this seems to be accepted by Mr Viscariello by reason of the statements in the affidavit to which I have referred where in the fourth affidavit Mr Viscariello says that it is part of his claim that “much of the fees” incurred would not otherwise have been incurred. The ascertainment of the “much of the fees” is a central element to the proper quantification of the claim. Even once Mr Viscariello has provided particulars of the extent to which he makes that assertion, the defendant must be afforded an opportunity to respond to that pleading. The opportunity to be afforded to the defendant must be an informed opportunity where the defendant is able to review the outcome of the Full Court proceedings in order to determine whether any part of the quantification will be admitted or the grounds on which the parts of the claim are advanced by Mr Viscariello are disputed.
The development of alternative measures and hypothetical outcomes of the Full Court proceeding in the pleading of a claim and defence in this action will almost certainly be a waste of time and effort. The investigation of invoices and costs incurred without first having an identification of the relevant issues determined by the Full Court, will result in waste and duplication. The investigation of costs appears to require consideration of the work done by Mr Phillips and the costs charged and paid, together with the costs of each of the subsequent solicitors and counsel who appeared at the Full Court. A separation of issues between the numerous legal firms and avoidance of duplication of effort must be a factor on which the parties would be best advised to direct efforts once the outcome of the Full Court decision has been determined.
These factors combine to cause me to exercise my discretion to grant a stay of proceedings pending determination of the matter before the Full Court of the Supreme Court of South Australia.
This conclusion is consistent with the objects of the rules of court. Rule 3 provides that the objects of the rules are to establish orderly procedures for the just resolution of civil disputes and to promote efficiency in dispute resolution so far as that object is consistent with the paramount claims of justice and to minimize the cost of civil litigation to litigants and to the State. I include the reference to minimise costs to the State as it allows for consideration of the efficient use of judicial resources as was said by French CJ in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at page 182, [5], that the time of the court is a publicly funded resource and inefficiencies in the use of that resource …. are to be taken into account as well as the need to maintain public confidence in the judicial system.[5]
[5] SADC Decision No. 30/2017 at [57]-[62].
The nature of an appeal from a discretionary decision of a District Court Master
There is no dispute between the parties that the decision whether or not to grant a stay is a discretionary one.
The basis for an appeal from a District Court Master is set out in Rule 286 of the District Court Civil Rules 2006 as follows:
(1)An appeal is to be by way of rehearing (unless the law under which the appeal is brought provides to the contrary).
(2)Subject to any limitation on its powers arising apart from these Rules, the Court may determine an appeal as the justice of the case requires despite the failure of parties to the appeal to raise relevant grounds of appeal, or to state grounds of appeal appropriately, in the notice of appeal.
(3)Subject to any limitation on its powers arising apart from these Rules, the Court may—
(a)     draw inferences of fact from evidence taken at the original hearing and, in its discretion, hear further evidence on a question of fact;
(b)     amend or set aside the judgment subject to the appeal and give any judgment that the justice of the case requires;
(c)     remit the case or part of the case for rehearing or reconsideration;
(d)     make orders for the costs of the appeal.
The nature of this type of appeal was discussed by Layton J in McLean v DID Piling Pty Ltd,[6] where she said:
[18] Accordingly, the appeal is to be by way of rehearing. This court is therefore obliged to conduct a real review of the decision and of the Master’s reasons.
[6] [2010] SASC 94.
In relation to an appeal from an exercise of discretion, she went on to say:
…it is appropriate to follow the well known rules in House v R, which case sets out the circumstances in which an appellate court would disturb an exercise of discretion. In that case the High Court said (at 504–5):
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[23] Accordingly, it is necessary that the appellant identify an error by the Master of the kind described in House v R before any appeal should be allowed.[7]
[7] [2010] SASC 94 at [22] – [23].

Thus, for Mr Viscariello to succeed on this appeal, he must demonstrate that the Master made an error of principle, took into account extraneous or irrelevant matters, or failed to take into consideration relevant matters, made a mistake of fact or that the Master’s decision was unreasonable or plainly unjust.
Mr Viscariello’s grounds of appeal
In relation to the stay orders Mr Viscariello contends that the Master erred:
3.2     In allowing the Respondent’s Application the learned Master erred:
a.     by having regard to matters which were unrelated, not adjectival or ancillary to the determination of the substantive proceeding as disclosed in the pleadings;
b.     by applying the decision in Huntingdale to the facts of this case;
c.      by having regard to matters which were unrelated, not adjectival or ancillary to the determination of the subjective proceeding as disclosed in the pleadings in applying the decision in Huntingdale to the facts of this case;
d.      at [56] in holding that:
“It is further relevant to observe that the app before me is not for a permanent stay but for a limited stay until the decision in the Full Court appeal and cross-appeal has been delivered.”
When a permanent stay is the effect of both the order sought in the Respondent’s Application and Order 1 of the Orders made by he learned Master on 5 September 2017.
I do not deal with ground 3.2d as I have determined that the stay ordered by the Master was not a permanent stay.
Ground 3.2(a)
Mr Viscariello’s argument in relation to this ground of appeal was somewhat difficult to follow. What I understood him to be saying was that in making his decision to grant the stay, the Master relied on matters that were not related to the subject matter of his claim as disclosed by the pleadings. For example, Mr Viscariello says that at paragraph 26 of his reasons, the Master impermissibly relied on the submissions of the defendant that the defendant maintained there was no cause of action. This is impermissible because the defendant has made no such plea in her defence. Mr Viscariello makes the same criticism of paragraphs 27, 28, 29 and 30 of the Master’s reasons; the defendant has made submissions in support of the stay on the basis of matters that have not been pleaded. Mr Viscariello takes particular exception of the conclusion reached by the Master at [37] where he says:
The determination of the plaintiff’s claim in this action will necessarily require consideration of the outcome of the appeal. The defendant’s case will need to be presented in light of the orders of the Full Court, even if the plaintiff chooses to present his case on the basis outlined in the submissions quoted above.[8]
[8] SADC Decision No. 30/2017 at [37].
His position is that the Master has failed to articulate what the connection is between this matter and the Supreme Court appeal; as that connection has not been pleaded in the statement of claim, the defence or the reply, it cannot be relied on by the defendant in her submissions or by the Master in his reasons.
Mr Viscariello further criticises paragraph 54 for the same reason. In that paragraph, the Master concludes:
The outcome of the issues in the appeal and cross-appeal are material to the claims made in the District Court proceedings.
Mr Viscariello says that as the notices of appeal and cross-appeal were not before the Master in the hearing of the stay application, they should not have been considered by him in reaching his conclusion.
This is not an exhaustive statement of the paragraphs that Mr Viscariello sought to impugn on the basis that the Master relied on matters which were “unrelated, not adjectival or ancillary to the determination of the substantive proceedings as disclosed in the pleadings”. It is simply a number of examples of the issue as raised by Mr Viscariello.
In making this submission, Mr Viscariello relied on the decision of the Full Court in Viscariello v Legal Profession Conduct Commissioner,[9] where the Court discussed the appropriate subject matter for an interlocutory application. Hinton J said the following:
The content of an interlocutory application must necessarily take its shape from the contours of the related substantive proceeding. Hence in Savings & Investment Bank Ltd v Gasco Investments (Netherlands) BV (No 2) the English Court of Appeal held that an interlocutory application is one which is ancillary to the issues raised in the action, the true purpose of which is to enable the proper conduct of the trial and the final resolution of the issues between the parties…
And, in ERS Engines Pty Ltd v Wilson, Young J, as he then was, held that interlocutory relief must relate to or arise out of the final relief sought in the initiating process, whilst in Hardel Pty Ltd v Burrell & Family Pty Ltd Kourakis J, as he then was, said that interlocutory proceedings were to be regarded as procedural or adjectival. It follows that interlocutory proceedings must be related to some other proceeding to which they are subsidiary and connected. The question to be asked is; how is the outcome of the application adjectival or ancillary to the determination of the substantive proceeding?[10]
[9] [2017] SASCFC 98.
[10] [2017] SASCFC 98 at [79]-[80].
This is the genesis of Mr Viscariello’s submission that the defendant’s submissions were “unrelated, not adjectival or ancillary”, in that they did not arise out of matters specifically pleaded by either party, and that the Master was in error in relying on matters that were not specifically pleaded. On this basis, his conclusion is that any reliance on the hearing or outcome of the Supreme Court appeal, in reaching a decision on whether a stay should be allowed, was in error.
In response to this argument, the defendant has submitted that Mr Viscariello has fundamentally misunderstood the authority on which he based his submission, as a result of which his argument is fatally flawed. It is the defendant’s position that Hinton J’s statement that “The content of an interlocutory application must necessarily take its shape from the contours of the related substantive proceeding” and his reliance on the statement made by the Court of Appeal in Savings & Investment Bank Ltd v Gasco Investments (Netherlands) BV (No 2),[11] does not mean that an interlocutory applicant may only refer to matters specifically pleaded. It means that an interlocutory application must be ancillary to the conduct or subject matter of the primary proceeding. Thus, the defendant says that the hearing and outcome of the Supreme Court appeal is ancillary to the conduct of this proceeding, and as a result, the Master was entitled to take them into account.
[11] [1988] Ch 422.
I am of the view that the defendant’s is the correct interpretation of the words stated by Hinton J in Viscariello v Legal Profession Conduct Commissioner. For a matter to be related, ancillary or adjectival to the substantive proceeding, it is not necessary, in all instances, for that matter to be specifically pleaded. A question going to the procedural timetabling of a matter will not always be answerable by considering only matters raised in the pleadings. The determination of the issues in the Supreme Court appeal is clearly ancillary to the determination of the issues in this matter, in that they relate not only to quantum, but also to the nature of the claim made by the plaintiff, which will change depending on whether he is successful on the Supreme Court appeal. Thus, I am of the view that it was permissible for the Master, in making his decision to order the stay, to take into consideration the fact of the Supreme Court appeal, that it had been heard but not determined, and the uncertainties caused by this in formulating the case to be addressed by the parties in this matter. There was no error on the part of the Master in doing so.
Ground 3.2(b)
Mr Viscariello says that the Master erred in finding that the decision in Huntingdale applied to this matter, in deciding whether the stay sought by the defendant should be granted. It was Mr Viscariello’s submission that Huntingdale and its reasoning was inapplicable to this matter for the following reasons:
·The parties in Huntingdale were the same in each action (ie the action in relation to which the stay was sought, and the action which needed to be resolved prior to the lifting of the stay);
·The court Rule being applied is significantly different to that applicable in this matter; and
·The plaintiff would not be prejudiced by the stay because the payment in question had not yet been made, whereas Mr Viscariello has paid the deceased’s fees, as well as the fees of the solicitor and counsel retained for the Supreme Court appeal, thus he has suffered loss and will continue to suffer loss for the period of time that he is prevented from pursuing this action to recover those losses.
It is the defendant’s position that the master did not err in relying on Huntingdale.
I am of the view that no error was made by the Master when he relied on Huntingdale, in reaching his decision to grant the stay.
At paragraph 45 of his reasons, the Master discussed Mr Viscariello’s submissions as to why Huntingdale should be distinguished. The Master found that:
The decision in Huntingdale does appear to have application in the sense that the outcome of the Full Court appeal will direct the claim and the evidence in relation to the claim in these proceedings.[12]
[12] SADC Decision No 30/2017 at [45].
He also indicated that while the issue of prejudice was one to be taken into consideration it was not a determinative factor. Prejudice to each party, of both the stay, and a refusal to grant the stay needs to be considered and weighed accordingly (at [47]).
It is true that there are some factual similarities between the circumstances in the matter before me, and those in Huntingdale. It is also true that there are a number of dissimilarities. This can only be expected, as it is rare that the factual situation in one matter is mirrored in any other proceeding. This does not prevent one matter being good authority for another, despite a number of, or perhaps numerous, factual dissimilarities. It is the overriding principles that are important and in my view, the principles distilled in Huntingdale transcend its factual matrix.
In Huntingdale, Le Miere J said:
[21] 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.
This is a principle that can be applied regardless of the factual differences between the case before me and the case before Le Miere J. The Master did not err in relying on it. Once he determined that the outcome of the Supreme Court appeal would inform the manner in which this matter 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.
Ground 3.2(c)
I do not address this ground as it appears to be a repetition of grounds 3.2(a) and 3.2(b).
Was the decision of the Master otherwise unreasonable or plainly unjust?
In reaching his decision to stay this action, the Master appropriately relied on Beare v Light Regional Council[13] and on Huntingdale. Having considered these authorities, he found:
The importance of the need to ensure 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 appeal and cross-appeal by the Full Court 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. [14]
[13] [2008] SADC 72.
[14] SADC decision No 30 of 2017 at [48].
In reaching this conclusion, he determined that a finding that the deceased had breached his retainer would not necessarily result in a finding that such a breach was causative of loss and damage, as submitted by Mr Viscariello. He accepted the submission of the defendant that the issues pleaded by way of defence would in part be determined by outcome of the Supreme Court appeal. It is the defendant’s position that the value (or lack thereof) of the work performed by the deceased cannot be quantified until the Supreme Court appeal is determined, and that the overall loss suffered by Mr Viscariello would be dependent on (amongst other things) any costs orders made in relation to the Supreme Court appeal. Before me, the defendant submitted that while these issues were relevant to quantum, they were so intrinsically bound up with the question of liability that they could not be separated.
The Master reached the view that continuation of this action prior to the delivery of judgment in the Supreme Court appeal would lead to the defendant being required to structure her defence based on hypotheticals and alternatives. This would result in a waste of effort and resources for both Mr Viscariello and the defendant. He also found that the granting of a stay was consistent with the objects of the Rules, that is “to establish orderly procedures for the just resolution of civil disputes and to promote efficiency in dispute resolution so far as that object is consistent with the paramount claims of justice and to minimize the cost of civil litigation to litigants and to the State.”[15]
[15] SADC decision No 30 of 2017 at [62].
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.
For completeness, I note that Mr Viscariello relied on a number of authorities dealing with the situation where a stay is sought on the basis of an abuse of process.[16] As the application for a stay in this matter was not on the basis of an abuse of process, I do not consider that these authorities should inform my decision.
[16] These authorities included The Corporation of the City of Adelaide v Cicelli [2015] SASC 21 and Kermani v Westpac Banking Corporation [2012] VSCA 42.
Mr Viscariello’s appeal in relation to primary decision of the Master is dismissed.
The Costs Order
Mr Viscariello submits that the Master erred in making an order for indemnity costs in favour of the defendant and in certifying that the matter was fit for counsel. This is on the basis that he was denied natural justice, procedural fairness and the right to be heard, that the Master failed to give proper and adequate reasons, and that the Master took into account irrelevant matters and failed to take into account relevant ones. He also says the Master failed to identify and apply relevant legal principles.
The position of the defendant is that, as the questions of costs is a discretionary one, this should only be overturned if an error of the House v R[17] type is identified.
[17] (1936) 55 CLR 499.
I am of the view that Mr Viscariello’s appeal in relation to the question of costs should be allowed, on the basis that he was denied procedural fairness.
The Master’s decision was emailed to the parties on 5 September 2017. It notified the parties that the question of costs had been reserved, and that the matter was listed for further directions on 11 September 2017. There was no indication that the question of costs would be argued at this time. On 11 September 2017, when Mr Viscariello indicated that he was not in a position to argue costs as he understood that the matter was listed for directions only, the Master advised him that his understanding was incorrect and that costs wold be argued at that time.
Neither party has indicated to me that there was any communication from the Court between the emailing of reasons and the directions hearing to advise the parties of the change in the nature of the hearing, nor has there been any suggestion that the defendant indicated to the plaintiff that she would seek to have the question of costs argued on 11 September 2017. The court record, including the sealed orders clearly indicate that that the hearing listed for 11 September 2017 was a directions hearing. There is no suggestion that the question of costs would be argued on that day. In those circumstances, I find that the Mr Viscariello was justified in believing that the question of costs would not be argued on that day, and the directions would be given as to the future listing of any costs argument. He was denied procedural fairness in requiring him to argue costs at that time.
Given my finding, I do not address Mr Viscariello’s other grounds of appeal. The orders made by the Master on 11 September 2011 must be set aside. This question must be referred back to the Master to be argued.
In summary, Mr Viscariello’s appeal in relation to the orders made on 5 September 2017 is dismissed. His appeal of the orders made on 11 September 2017 is allowed.
I make the following orders:
1The appellant has leave to rely on his second notice of appeal filed on 5 October 2017.
2The appeal in relation to the orders made on 5 September 2017 is dismissed.
3The appeal in relation to the orders made on 11 September 2017 is allowed.
4The question of the costs of the application before the Master is remitted to the Master for hearing.
I will hear the parties on the question of costs of the appeal.