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…

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 79
Decision Date: 15 May 2019

CaseChat Overview and Summary

In the case of Viscariello v Tamasauskas (No 3), the plaintiff, Viscariello, sought to set aside an order that had refused permission to appeal a decision granting a temporary stay of proceedings, and to reopen and re-hear the appeal. The case was before the Supreme Court of South Australia, where the primary judge had already dismissed an appeal from a decision of a Master that had granted a temporary stay of the District Court proceedings. Viscariello's appeal from that decision had also been dismissed by Judge Bochner.

The central legal issue before the court was whether the judge had the power to set aside his earlier order refusing permission to appeal, and if so, whether that power should be exercised in the circumstances of this case. The plaintiff argued that fresh evidence was available that had not been before the court at the time the earlier order was made. This evidence related to the potential impact of the Supreme Court appeal on the District Court proceedings. The defendant argued that the fresh evidence did not warrant the exercise of the court's discretion to set aside the earlier order.

The court found that it did have the power to set aside its earlier order and to re-open and re-hear the appeal in light of the fresh evidence. However, in exercising that discretion, the court found that the fresh evidence did not warrant setting aside the earlier order. The court held that the fresh evidence did not establish a sufficient likelihood that the outcome of the Supreme Court appeal would significantly affect the conduct of the District Court proceedings. The court found that the fresh evidence did not change the balance of convenience or the likely impact of the Supreme Court appeal on the District Court proceedings.

No orders were made by the court in this appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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].

Decision

Reasons for decision

DOYLE J

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Ratio Decidendi

Legal Principle Established

Established by: DOYLE J

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