Viscariello v Tamasauskas (No 3) - [2019] SASC 79

Supreme Court of South Australia
(Civil)
VISCARIELLO v TAMASAUSKAS (NO 3)
[2019] SASC 79
Judgment of The Honourable Justice Doyle (ex tempore)
15 May 2019
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FRESH EVIDENCE - IN GENERAL
Second application to set aside an order refusing permission to appeal from a decision granting a temporary stay of proceedings, and that the appeal (or application for permission to appeal) be re-opened and re-heard.
The application is brought under r 242 and/or r 286(3)(a) of the Supreme Court Civil Rules 2006 (SA). The plaintiff relies on what is contended to be ‘fresh evidence’, being subsequent events in the litigation. He contends that these demonstrate the falsity of the evidence and submissions relied upon by the defendant at the hearing of the application before the Master, and the subsequent appeals.
Held:
1.       The operation of r 286(3)(a) is confined to extant appeals, and does not provide power to adduce fresh evidence after orders dismissing the appeal (or application for permission to appeal) have been entered and/or perfected.
2.       The mere satisfaction of the usual principles in relation to fresh evidence on appeal is not a sufficient basis to enliven the Court’s discretionary power to set aside, re-open and re-hear under r 242.
3.       In the alternative, and in any event, the evidence of the subsequent litigation events relied upon by the plaintiff does not constitute ‘fresh evidence’ in the relevant sense. Further, the importance of the finality of litigation, and the lack of utility in the appeal, weigh against the granting of the application.
4.       The plaintiff’s application is dismissed.
Supreme Court Civil Rules 2006 (SA) rr 242, 286(3)(a), referred to.
Viscariello v Tamasauskas [2018] SASC 111; Viscariello v Tamasauskas (No 2) [2019] SASC 40; N, A-B v V, AM (No 2) [2017] SASCFC 174; Clone Pty Ltd v Players Pty Ltd (2018) 92 ALJR 399; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Keung v Abbott (No 2) [2019] SASCFC 39; McAdam v Robertson (1999) 73 SASR 360; Money Tree Management Services Pty Ltd v Deputy Commissioner of Taxation (No 4) [2000] SASC 313; Health & Property Network Pty Ltd v Pettingill & Ors [2001] SASC 45, considered.

VISCARIELLO v TAMASAUSKAS (NO 3)
[2019] SASC 79
Civil
DOYLE J (ex tempore):

This is the second application by the plaintiff (Mr Viscariello) to set aside my order of 7 August 2018 refusing permission to appeal from a decision granting a temporary stay of these proceedings.
The relevant background to these proceedings, and to the within application, is set out in my reasons for refusing permission to appeal,[1] and my reasons for dismissing the plaintiff's first application to set aside my earlier order.[2] It is unnecessary to repeat that background. I adopt in these reasons the defined terms used in those earlier reasons and, in particular, the descriptions of these proceedings as ‘the District Court proceedings’, the separate proceedings brought by Mr Viscariello against Mr Macks as ‘the Supreme Court proceedings’ and the appeal in those separate proceedings as ‘the Supreme Court appeal’.
[1] Viscariello v Tamasauskas [2018] SASC 111.
[2] Viscariello v Tamasauskas (No 2) [2019] SASC 40.
The present application to set aside my earlier order refusing permission to appeal relies upon what the plaintiff contends is ‘fresh evidence’, and is brought under r 242 and/or r 286(3)(a) of the Supreme Court Civil Rules 2006 (SA). The plaintiff seeks orders setting aside my earlier order, and that the plaintiff's appeal (or application for permission to appeal) be re-opened and re-heard.
It is appropriate to commence by identifying the fresh evidence relied upon by the plaintiff before then addressing the issues of whether I have power to set aside my earlier order and then, if so, whether I should exercise that power in the circumstances of this case.
The fresh evidence
In support of her application for a stay of the District Court proceedings pending determination of the Supreme Court appeal, the defendant relied upon evidence and submissions to the effect that the course and conduct of the District Court proceedings, including her defence of those proceedings, would be informed by the outcome of the Supreme Court appeal.
The Master accepted the defendant's evidence and submissions, and relied upon this in exercising his discretion to order a temporary stay. In dismissing the appeal from the Master's decision, Judge Bochner upheld the Master's reliance upon the predicted impact of the Supreme Court appeal upon the conduct of the District Court proceedings.[3] I did likewise in refusing the application for permission to appeal from the decision of Judge Bochner. The relevant passage from my reasons was as follows:[4]
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.
I have summarised Judge Bochner’s reasons for rejecting these interrelated arguments. I agree with, and adopt, Judge Bochner’s reasoning in this regard.
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.
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.
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.
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.
[3] Viscariello v Tamasauskas [2018] SASC 111 at [43]-[49].
[4] Viscariello v Tamasauskas [2018] SASC 111 at [101]-[106].
As explained in my earlier reasons, the stay that was granted by the Master and upheld on appeal before Judge Bochner and then me, was intended as a temporary stay pending determination of the Supreme Court appeal. The Full Court delivered judgment in the Supreme Court appeal on 22 December 2017. The question of costs was not dealt with until 17 October 2018.
At the time of the appeal before me, it was apparent that the rationale for, and the intended purpose of, the temporary stay had been exhausted, and that it could and would soon be lifted. Indeed, the resulting lack of utility in the proposed appeal against the temporary stay was a significant factor in my decision to refuse permission to appeal.[5]
[5] Viscariello v Tamasauskas [2018] SASC 111 at [88]-[89].
The stay was ultimately lifted in September 2018, and the District Court proceedings have since resumed their procedural progression. The plaintiff filed a third statement of claim on 4 October 2018, and the defendant filed a second defence on 18 October 2018 and has also filed a list of documents in recent times.
The amendments to the plaintiff’s statement of claim were relatively extensive, and included quantification of the costs in fact incurred on the Supreme Court appeal, and an identification of the extent to which they are said to have been wasted by Mr Phillips’ alleged breaches of duty. That said, as Mr Viscariello put to me in argument this morning, he had indicated that he was in a position to, and offered to, quantify these costs soon after the hearing of the appeal and hence without waiting for the outcome to become known.
While the second defence joins issue with, and pleads answers to, most of the amendments, it does not expressly plead anything arising out of the outcome of the Supreme Court appeal. And the defendant's list of documents does not include disclosure of any documents postdating the Supreme Court appeal.
The plaintiff relies upon the matters in the preceding two sentences as ‘fresh evidence’ for the purposes of the present application. He contends that the absence of anything in the defendant's second defence or disclosure demonstrates the falsity of the evidence and submissions relied upon by the defendant at the hearing of the application before the Master, and the appeals before Judge Bochner and me, to the effect that the course and conduct of the District Court proceedings would be affected by the outcome of the Supreme Court appeal.
The Court's power to set aside an earlier order
As mentioned, the plaintiff relies upon r 286(3)(a) and/or r 242 of the Supreme Court Rules as providing the Court with the power to set aside my earlier order refusing permission to appeal, and to then re-open and re-hear the application for permission to appeal.
I do not accept that r 286(3)(a) has any application in the present circumstances. That rule governs the receipt of fresh evidence, albeit referred to in the rule as ‘further evidence’, in an extant appeal. It is hence confined in its operation to the situation of an application made prior to the hearing of an appeal, or at least prior to the determination of the appeal. It is not, in my view, a power to entertain an application to receive fresh evidence after an appeal (or, indeed, an application for permission to appeal) has been heard and determined.
While Mr Viscariello, in the course of oral argument, took me to some authorities applying r 286(3)(a), I do not understand any of those authorities to involve applications brought after the appeal, or the application for permission to appeal, has been determined.
In this context, I make particular reference to the authority of N, A-B v V, AM (No 2).[6]Mr Viscariello’s submissions assumed that this was an authority under r 286. I accept that it is not made express in the reasons given by Nicholson J in that case but, in my view, it is apparent from his Honour's reasons that it was in fact a decision under, or treated as an application under, r 242. In support of that, I rely in particular on his Honour’s reference in paragraph [5] to the principles for the adducing of fresh evidence being “necessary but not necessarily sufficient” to satisfy or provide a basis for re-opening an appeal. In my view, it is implicit in this that the application was made under some power or rule other than r 286(3)(a); or at least that there was some other threshold issue prior to exercising the discretion under r 286(3)(a).
[6] N, A-B v V, AM (No 2) [2017] SASCFC 174 at [5].
In this case, I have already heard and dismissed the plaintiff's application for permission to appeal. The order refusing permission was made on 7 August 2018, over eight months prior to the present application to set aside that order. The order was drawn up by my associate, signed by me and entered into the Court record of outcome within a few days of my reasons being published and the orders being announced in open court. In my view, it is accurate for present purposes to speak of the orders having been ‘perfected’ at this time, even though I acknowledge that the Supreme Court Rules are not entirely clear about the use of this term and appear to contemplate a more formal process, at least in some circumstances; and even though I accept that in this case the order was not formally sealed.
In my view, the order refusing permission to appeal having been made and perfected, I was thus functus officio at the time the present application was filed, subject only to the operation of r 242.
I accept that r 242 empowers the Court to act in the circumstances I have described; that is, despite the formal entry and/or perfection of orders made by the Court. However, and despite the discretion under the second limb of that rule (r 242(2)) being conditioned or constrained only by satisfaction that the “justice of the case” requires intervention, the power to set aside and re-open under this rule is in my view to be exercised with caution, having regard to the strong public interest in maintaining the finality of litigation.
I rely in this respect upon the observations made in my earlier reasons[7] in this matter, as to the caution that is appropriate, particularly in light of the High Court's affirmation of the importance of finality in litigation in Clone Pty Ltd v Players Pty Ltd.[8] I also rely upon the recent observations of Hinton J, with whose reasons Kourakis CJ and Kelly J agreed, in Keung v Abbott (No 2).[9]
[7]    Viscariello v Tamasauskas (No 2) [2019] SASC 40 at [47]-[51].
[8]    Clone Pty Ltd v Players Pty Ltd (2018) 92 ALJR 399. See also Aon Risk Services Australia Ltd v
[9]    Keung v Abbott (No 2) [2019] SASCFC 39 at [32]-[36], [51]-[56].
Even prior to Clone Pty Ltd v Players Pty Ltd it had been recognised that the discretionary power under r 242 was not an ample one, but rather was to be exercised sparingly and in fairly closely confined circumstances.[10] However, as Hinton J observed in Keung v Abbott (No 2), the correctness of some of these earlier decisions in relation to r 242 and its predecessor, r 84.12, as to the breadth of that power, must now be doubted.
[10] McAdam v Robertson (1999) 73 SASR 360 at [40].
It is true that in Clone Pty Ltd v Players Pty Ltd the High Court left open the possibility of grounds other than fraud for setting aside a perfected judgment.[11] However, for the reasons set out in the passages referred to above from my earlier reasons in this matter, and Hinton J's reasons in Keung v Abbott (No 2), to the extent that other grounds exist, they are likely to be closely confined. While those grounds might extend to circumstances involving a fundamental misapprehension of the facts, the overlooking of a significant matter, or a failure to afford procedural fairness, I do not consider that mere satisfaction of the ordinary rules or principles governing the receipt of ‘fresh evidence’ on appeal will suffice.
[11] Clone Pty Ltd v Players Pty Ltd (2018) 92 ALJR 399 at [2].
Though the reasons of Debelle J in Money Tree Management Services v Deputy Commissioner of Taxation (No 4),[12] might be read as supporting such an approach, the correctness of this approach is difficult to reconcile with the subsequent authorities to which I have referred. I also refer in this context to a decision brought to my attention this morning by counsel for the defendant, Mr Adams, of Health & Property Network v Pettingill,[13] the effect of which is to make plain that the mere existence of subsequently obtained evidence is not a sufficient basis for engaging r 242. This appears to be, at least implicitly, confirmatory of an approach to r 242 that requires something more than fresh evidence. Indeed, more recently, in N, A-B v V, AM (No 2), Nicholson J (with whose reasons Bampton and Hinton JJ agreed) described satisfaction of the test for fresh evidence, and demonstration of a real risk of miscarriage as “necessary but not necessarily sufficient” to warrant exercise of the discretionary power to re-open an appeal.[14]
[12] Money Tree Management Services Pty Ltd v Deputy Commissioner of Taxation (No 4) [2000] SASC
[13] Health & Property Network Pty Ltd v Pettingill & Ors [2001] SASC 45 at [18].
[14] N, A-B v V, AM (No 2) [2017] SASCFC 174 at [5].
Here, the plaintiff's application was confined to circumstances said to satisfy the test for fresh evidence. While the plaintiff contended that the effect of the fresh evidence was to reveal that the court had been misled as to the true position, the plaintiff expressly eschewed any allegation of fraud or malpractice as a foundation for his application to set aside my earlier order.
In my view, while the Full Court might – upon any appeal from my earlier order – entertain and determine an application for fresh evidence based upon the usual principles governing such applications, I do not consider that satisfaction of those principles provides a basis for me to set aside my earlier order under r 242(2).
In my view, this is so even though, for the reasons I have previously given, I consider that the Master’s decision was an interlocutory one. It is true that many interlocutory decisions by their very nature are able to be revisited if circumstances change. However, this is not an application to reconsider the continuing appropriateness of the stay that was originally ordered. Such an application, indeed, could not be brought because the stay has been lifted. This is an application to set aside my refusal to grant permission to appeal from the original order granting a stay. In my view, that requires an application of the principles governing the operation of r 242(2).
Inadequate basis for exercise of discretionary power
The above is a sufficient basis for me to dismiss the plaintiff’s present application. However, even if, contrary to the views I have expressed, satisfaction of these principles governing the receipt of fresh evidence on appeal were a basis for exercising the court’s discretion under r 242(2), I would not have exercised that discretion in the plaintiff’s favour in the circumstances of this case. There are broadly speaking two reasons for this.
The first is that I am not satisfied that the fresh evidence sought to be relied upon by the plaintiff would satisfy the usual requirements for a favourable exercise of the discretion to receive such evidence on an appeal, let alone provide a sufficient basis for doing so at the time the present application was brought.
While some of the usual requirements of fresh evidence are satisfied, one such requirement is that the fresh evidence must be such that it would have had an important influence on the result of the matter under appeal.

Here, the plaintiff contends that the fresh evidence establishes the falsity of the defendant’s evidence and submissions to the effect that the outcome of the Supreme Court appeal would affect the course and conduct of the District Court proceedings, including her defence of those proceedings. In my view, this misunderstands the point made by the defendant (and relied upon by the Master, Judge Bochner and me), and overstates the significance of the subsequent litigation events relied upon by the plaintiff.
The evidence and submissions of the defendant did not involve a statement of present fact capable of being falsified in the ordinary sense. Rather, they involved something of a prediction; or a statement by the defendant (through her solicitor) of her view or position as to the inherent capacity of the outcome of the Supreme Court appeal to affect the future course and conduct of the District Court proceedings. I accept the point made by Mr Viscariello in the course of his submissions this morning that at least on occasions the statements made on behalf of the defendant were put in fairly unequivocal or absolute terms, including that the outcome of the Supreme Court appeal “will affect” the District Court proceedings, rather than just that they were inherently likely to do so. But, in my view, that does not change the inherently predictive nature of the evidence and submissions relied upon, and the fact that they would have been understood as such. The mere fact that the outcome of the Supreme Court appeal has not in fact found express voice in the second defence filed by the defendant does not in my view relevantly undermine, let alone falsify, the validity of the views or position expressed by the defendant in the context of the stay hearing.
By way of example, as the defendant points out in her submissions, the plaintiff was largely unsuccessful in the Supreme Court appeal. If, on the other hand, he had been largely successful and had obtained costs orders in his favour, then this would likely have reduced the value of the ‘wasted’ costs sought to be recovered in these proceedings. This reduction is a matter that might well have found voice in the second defence had there been an occasion for it. One can readily imagine other circumstances in which the outcome of the Supreme Court appeal might have affected the conduct and course of the District Court proceedings, and hence the defence of those proceedings.
In short, I am not satisfied that evidence of the subsequent litigation events relied upon by the plaintiff constitutes ‘fresh evidence’ in the relevant sense. The evidence does not, in my view, impugn the appropriateness or the true import of the evidence and submissions relied upon by the defendant, or its acceptance by the Master. I do not think it can be said that the ‘fresh evidence’ would have had an important influence on the result of the stay application.
Further, even if it could be said that knowledge of recent events might have influenced the Master's approach, it would be somewhat artificial in my view to treat this as ‘fresh evidence’ justifying a re-hearing. By its very nature, the decision at the time was based upon a prediction or forecast as to the likely connection with and, significance of, the Supreme Court appeal. To now revisit that decision simply because we have the benefit of hindsight, would in my view be to ignore or distort the very nature of the Master's decision.
I draw some, albeit indirect, support for this from the approach taken by Judge Burley in Health Property Network v Pettingill, which exemplified that the mere fact of subsequent evidence or events is not ordinarily an occasion to revisit a decision through the prism of r 242.[15]
[15] Health & Property Network Pty Ltd v Pettingill & Ors [2001] SASC 45 at [18].
Further, even if the plaintiff's fresh evidence did provide a potential basis for impugning the defendant's evidence and submissions on the stay application it would still be necessary to ensure that adequate regard is had to the finality of litigation before permitting receipt of the evidence. In my view, the importance of finality of litigation would have loomed large here and would have disinclined me to re-open the matter so as to receive the fresh evidence. I rely in this respect upon a number of authorities in the context of the fresh evidence principles that have emphasised the importance of finality of litigation.
The second reason for declining to exercise any discretion in the plaintiff's favour is the fact that the temporary stay the subject of the appeal that the plaintiff seeks to have re-opened has now in any event been lifted. The observations that I made in my earlier reasons as to the lack of utility in the application for permission to appeal apply a fortiori now that the stay has been lifted. In my view, this lack of utility in the appeal, and hence in re-opening the application for permission to appeal, stands in the way of any conclusion that the “justice of the case” requires intervention under r 242(2).
For these reasons, I dismiss the plaintiff's application to set aside my earlier order for the purposes of re-opening and re-hearing the plaintiff's appeal (or application for permission to appeal).

Australian National University (2009) 239 CLR 175.

313 at [18].