Viscariello v Tamasauskas (No 2) - [2019] SASC 40

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
VISCARIELLO v TAMASAUSKAS (NO 2)
[2019] SASC 40
Judgment of The Honourable Justice Doyle
21 March 2019
COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - REASONABLE APPREHENSION OF BIAS GENERALLY
PROCEDURE - JUDGMENTS AND ORDERS
Application to set aside an order refusing permission to appeal, and for the Judge to recuse himself from determining the issue of costs consequential upon that order, on the basis of an apprehension of bias.
The plaintiff was refused permission to appeal from a decision granting a temporary stay of proceedings. After that order had been perfected, but before determining the issue of costs, the plaintiff applied for the Judge to set aside his order on the ground that, inter alia, there was a reasonable apprehension of bias arising out of his familial relationship with a member of the firm of solicitors representing the defendant (despite her not having had any involvement in these proceedings). This relationship had not been disclosed at the commencement of the proceedings.
Held (per Doyle J):
1. The familial association, even when considered in combination with the other matters raised by the plaintiff, does not provide a basis for concluding that a fair-minded lay observer might reasonably apprehend that the Judge might not have brought an impartial mind to the resolution of the application for permission to appeal, or might not bring an impartial mind to the resolution of the issue of costs arising out of the dismissal of that application.
2. The plaintiff’s application is dismissed.
Supreme Court Act 1935 (SA) s 50(5); Supreme Court Civil Rules 2006 (SA) r 242, referred to.
Viscariello v Tamasauskas [2018] SASC 111; Kowalski v R J Cole & Partners (2015) 122 SASR 320; Re Bernsteen Pty Ltd [2018] SASC 76; Australian Securities and Investments Commission v Macks (No 2) [2019] SASC 17; Clone Pty Ltd v Players Pty Ltd (2018) 92 ALJR 399; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; Dib Group Pty Ltd v Coolabah Tree Aust-Wide Pty Ltd [2011] FCAFC 57; McAdam v Robertson (1999) 73 SASR 360; Burrell v The Queen (2008) 238 CLR 218; Cornwall v Rowan (No 3) [2006] SASC 110; Webb v The Queen (1994) 181 CLR 41; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 65 FCR 215; IOOF Aust Trustees Ltd v SEAS Sapfor Forests Pty Ltd (1999) 78 SASR 151; Johnson v Johnson (2000) 201 CLR 488; Re JRL, Ex parte CJL (1986) 161 CLR 342; Bienstein v Bienstein (2003) 195 ALR 225; Attorney-General (NT) v Director of Public Prosecutions (2013) 166 NTR 1; Lawrie v Lawler [2015] NTSC 40; Dixon v Cargill Meat Processors Pty Ltd [2009] NSWSC 101; Willoughby City Council v Transport Infrastructure Development Corporation [2008] NSWLEC 231; Duke Group Ltd v Pilmer (No…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2019] SASC 40
Decision Date: 21 March 2019

CaseChat Overview and Summary

The parties involved in the case are Mr Viscariello and Mr Tamasauskas, with the latter being the administrator of the estate of the late Mr Phillips. The dispute revolves around allegations of breaches of duty and retainer by Mr Phillips, who was Mr Viscariello's counsel in previous proceedings. Mr Viscariello, a former legal practitioner, is representing himself in the District Court proceedings and seeks to appeal a decision and request the judge's disqualification. The legal issues before the court include whether there was a reasonable apprehension of bias on the part of the judge due to a familial relationship with a solicitor from a firm representing the defendant, and whether the judge should recuse themselves from deciding the issue of costs related to the application for permission to appeal. The court's reasoning focuses on the lack of clear articulation of what aspects of the judge's treatment of the appeal issue would indicate a lack of impartiality. The judge concludes that the familial association, along with other matters, does not provide a basis for a reasonable apprehension of bias. Consequently, the court refuses to set aside the order dismissing the application for permission to appeal and declines to disqualify itself. The court will proceed to hear the parties regarding the costs of the application for permission to appeal and the present application.

The court carefully considered the nature of the allegations and the evidence presented by Mr Viscariello. The judge accepted Mr Viscariello's evidence about the timing of his knowledge regarding the familial relationship and the unresolved complaints against the solicitors. However, the judge found that the nature of the judge's treatment of the appeal issue did not indicate any lack of impartiality. The judge's conclusion was based on the absence of a clear articulation of what specific aspects of the judge's reasoning would suggest bias. The court emphasized that even if there was an error in the treatment of the issue, it would not alone establish a reasonable apprehension of bias. The judge was not satisfied that the familial association, combined with the other matters, provided a basis for concluding that a fair-minded lay observer might reasonably apprehend bias. As a result, the court's order stands, and the judge will not recuse themselves from deciding the issue of costs.

Orders

Orders of the court

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Background

Background to the litigation

These are my reasons for declining to set aside my order refusing Mr Viscariello permission to appeal, and for declining to recuse myself from determining the issue of costs consequential upon that order.Background In these District Court proceedings against the defendant administrator of the estate of the late Mr Phillips (the District Court proceedings), Mr Viscariello alleges breaches of duty and retainer by Mr Phillips in his capacity as counsel for Mr Viscariello. Mr Phillips had been counsel for Mr Viscariello in the long-running proceedings brought by Mr Viscariello in the Supreme Court against Mr Macks (the former liquidator of two companies of which he was a director and shareholder) (the Supreme Court proceedings). Mr Viscariello is a former legal practitioner in this State, and is representing himself in the District Court proceedings. This included representing himself on the application for permission to appeal heard by me, and the present application. At the time of his death by suicide on 24 March 2016, Mr Phillips was still engaged as counsel by Mr Viscariello in 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 in April 2016 (the Supreme Court appeal). As a result of Mr Phillips’ death, the Supreme Court appeal was vacated, and by the time the District Court proceedings were issued, it had been relisted for hearing in November 2016. That hearing was subsequently vacated, and the Supreme Court appeal was ultimately heard in February 2017. 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 him 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. In 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 not ultimately determined until September 2017, when the Master ordered that the action be stayed until further order. The Master granted the parties liberty to apply upon determination of the Supreme Court appeal, reflecting his Honour’s expectation that the stay would be a temporary stay – to be revisited, and likely lifted, following determination of the Supreme Court appeal.[2][2] Viscariello v Tamasauskas [2018] SASC 111 at [55]-[60]. Mr Viscariello appealed from the Master’s decision. This appeal was heard by a Judge of the District Court in December 2017. Her Honour reserved her decision.

Evidence

Evidence Before The Court

Mr Viscariello indicated during the course of the directions hearing that he did wish to pursue an application that I set aside my order refusing permission to appeal, disqualify myself and order that there be a rehearing of the matter before another judge of this Court. I set a timetable for the exchange of evidence and submissions, and listed the matter for oral hearing. That hearing occurred in late October 2018.Mr Viscariello’s evidence On 26 September 2018, Mr Viscariello filed his foreshadowed application. He also filed an affidavit in which he confirmed his indication in his email that he had only learned of Ms Doyle’s position at Iles Selley on 19 August 2018. He said that he had learned through subsequent internet searches that Ms Doyle had been employed by Iles Selley as a solicitor since 2010, and had in July 2018 become one of four principals of that firm. He said that had he known of my familial relationship with a principal from the firm representing the defendant he would have been entitled to apply for my disqualification from the matter. There was no challenge to Mr Viscariello’s evidence as to the timing of his learning of my sister’s position with Iles Selley. I accept the truth of what he says in this regard, and proceed on that basis. In his September 2018 affidavit, Mr Viscariello also made reference to various surrounding circumstances, mostly arising out of the Supreme Court proceedings and appeal mentioned above. As he explained, the Supreme Court proceedings included allegations by him about the conduct of Mr Macks, and various of the lawyers advising him from time to time, in respect of a suite of other proceedings involving a company of which Mr Macks was liquidator (Bernsteen Pty Ltd), Ms Hamilton-Smith and Ms George (the Bernsteen litigation). The first matter raised by Mr Viscariello in this context was that Mr Selley (another principal of Iles Selley) had acted for Mr Macks in an aspect of the Bernsteen litigation. Mr Viscariello said that he had made a complaint to the Legal Practitioners Conduct Commissioner (LPCC) about the conduct of Mr Selley, and that the complaint had not been resolved. Mr Viscariello added that because of this unresolved complaint against Mr Selley, he had objected to Mr Iles acting for the defendant in the District Court proceedings. The grounds of this objection, and Mr Iles’ reasons for not acceding to it, were fleshed out in correspondence exhibited to Mr Viscariello’s affidavit. Mr Viscariello also alleged that Mr Iles had not been appropriately forthright in disclosing the source of his instructions in the District Court proceedings. Mr Viscariello said that he had made a complaint to the LPCC about Mr Iles’ involvement in the District Court proceedings, and that this complaint was also unresolved. The second matter raised by Mr Viscariello arising out of the Supreme Court proceedings was the involvement of my brother, Mr Benjamin Doyle, as junior counsel for Mr Macks in the Supreme Court appeal. While the appeal itself had concluded prior to my involvement in these proceedings, the issue of the costs of that appeal remained outstanding.

Decision

Reasons for decision

While I of course consider that my treatment of this issue was sound, once again that is not the issue. Even if I was wrong, that would not of itself be probative of, let alone establish, a reasonable apprehension of bias. It was never clearly articulated in submissions what it was about this passage of my reasoning that bespoke a lack of impartiality. There is nothing in the nature of my treatment of this issue that to my mind would give rise to, or even contribute to, a reasonable apprehension of bias.Conclusion In summary, I am not satisfied that my familial association with Ms Doyle, even when considered in combination with all of the other matters relied upon by Mr Viscariello, provides a basis for concluding that a fair-minded lay observer might reasonably apprehend that I might not have brought an impartial mind to the resolution of the application for permission to appeal that I heard, or that I might not bring an impartial mind to the resolution of the issue of costs arising out of my dismissal of that application. Accordingly, I refuse the plaintiff’s application to set aside my order dismissing his application for permission to appeal, and decline to disqualify myself. I will hear the parties as to the costs of the application for permission to appeal, and the costs of the present application.

Ratio Decidendi

Legal Principle Established

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