Viscariello v The Legal Practitioners Disciplinary Tribunal

[2021] SASCFC 18

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

VISCARIELLO v THE LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL & ANOR

[2021] SASCFC 18

Judgment of The Full Court  

(The Honourable Justice Lovell, the Honourable Justice Hughes and the Honourable Auxiliary Justice Tilmouth)

12 March 2021

ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - APPLICATIONS

ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - EXTENSION OF TIME

PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT

The appellant sought an appeal of a decision of a single Judge of the Supreme Court to summarily dismiss his application for judicial review, and an order under rule 242 of the Supreme Court Rules 2006 to re-open and set aside previous orders of the Full Court in 2012 and 2013 that resulted in his name being removed from the roll of legal practitioners.

The appellant appealed the summary dismissal decision on the basis that particular charges filed in the Legal Practitioners Disciplinary Tribunal were invalid due to certain charges not being filed or laid in accordance with the Tribunal’s Rules.

The appellant argued, inter alia, that the invalidity of the charges had the effect of invalidating the Tribunal’s orders. Although the respondent defended the summary dismissal, it provided fresh and relevant evidence regarding the events under consideration. Accordingly, the Court proceeded to re-consider the judicial review against all of the evidence.

Held, per Hughes J (with Lovell J and Tilmouth AJ agreeing) allowing the appeal in part and dismissing the judicial review application:

1. to satisfy the requirement that the Board “determine” to lay a charge, the Board is not required to have before it the final version of the charge with particulars; it is sufficient for the Board to resolve to lay a charge and to allege a particular species of misconduct in the charge;

2. the Tribunal’s Rules with regard to the laying of the charge were complied with;

3. in any event, compliance with the particular Rules in question are not essential preconditions to a valid charge being laid;

4. the amending of the particulars of the Amended First Charge without an amendment of the charge itself did not require a fresh determination of the Board;

5. as the Second Charge was validly laid, the Tribunal was empowered to proceed with the consent of the parties, on the basis of agreed facts, that findings and orders should be made that the appellant is guilty of the lesser charge of unsatisfactory conduct;

6. the time for bringing a judicial review commenced upon the making of the impugned decision that is subject to judicial review and not from the point at which the appellant uncovered the purported error that is the subject of the review; and

7. the appellant’s circumstances fall within the rare category of circumstances in which it can properly be concluded that an extension of time should be refused, irrespective of the merits of the arguments sought to be advanced, as the appellant’s delay in commencing the proceedings was so attended by opportunity not taken.

Per Tilmouth AJ:

1. To construe the Legal Practitioners Act 1981 in the manner proposed by the appellant regarding the invalidity of amendments to charges, would render the administration of that Act and the procedures for disciplinary action, too inefficient and cumbersome for effective and expeditious resolution of charges in the manner expected of Administrative Tribunals; and

2. In relation to the Amended Second Charge, where the appellant did not oppose its amendment and proceeding by way of agreed facts with a lesser charge of unsatisfactory conduct, the appellant had effectively waived any right to later object to the charges.

3. In light of the extensive litigation history in this matter, to allow reopening now by way of appeal or judicial review, would undermine the public interest in the finality of litigation and jeopardise public confidence in the administration of justice.

Held, per Hughes J (with Lovell J and Tilmouth AJ agreeing) dismissing the r 242 application:

1. the primary Judge’s granting of the summary dismissal application did not dispose of the r 242 application;

2. the appellant has not established irregularities in the Board’s processes to warrant re-opening and setting aside the Full Court’s perfected orders;

3. even if irregularities in the Board processes were established, the r 242 application should nevertheless be rejected as the new evidence that formed the basis of the application was not sought by him or withheld from him, and was present and available to be obtained at any time; and

4. it is not necessary to determine whether the Full Court exercised its inherent jurisdiction when it made its orders in 2012 and 2013, however, the fact that the Full Court undertook the exercise that it did, leaves no room for doubt that the appellant’s conduct has been amply and repeatedly assessed as amounting to unprofessional conduct. This consideration would militate against the Court exercising the discretion to re-open a matter under r 242 in the appellant’s favour.

Per Lovell J:

1. As observed by Kourakis CJ in the appeal that the appellant pursued in 2016, the Full Court had made findings that were independent of the Tribunal’s determination and therefore the Court’s orders fell within its inherent jurisdiction even if the institution of proceedings to the Court was not authorised under s 89(1).

Legal Practitioners Act 1981 (SA) ss 68, 70, 72, 74, 75, 76, 77, 77AB, 77B, 78, 82, 83, 84, 88, 89 ; Supreme Court Civil Rules 2006 (SA) r 242; , referred to.

Flowers v Legal Professional Conduct Commissioner [2017] SASC 62; Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd & Ors [2020] SASC 161; Project Blue Sky Inc & Ors Australian Broadcasting Authority (1998) 194 CLR 355; Bell v Coroner's Court of South Australia [2020] SASC 59; Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd (No 2) (2013) 87 ALJR 1159; Patel v The Queen (2012) 247 CLR 531, applied.
B a Solicitor and G a Solicitor v Victorian Lawyers RPA Ltd [2002] VSCA 204; R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263; R v Janceski (2005) 64 NSWLR 10; Walsh v NSW Law Society [1999] HCA 33; (1999) 198 CLR 73; Barwick v Law Society of New South Wales [2000] HCA 2; (2000) 169 ALR 236, distinguished.
Moyes & Anor v J & L Developments Pty Ltd & Anor (No 2) [2007] SASC 261; Viscariello v Legal Practitioners Conduct Board [2012] SASCFC 147; Viscariello v Legal Practitioners Disciplinary Tribunal; Viscariello v Legal Profession Conduct Commissioner [2016] SASCFC 107; Viscariello v Legal Practitioners Disciplinary Tribunal & Anor [2019] SASC 98; McLeod v Legal Profession Conduct Commissioner [2016] SASC 151; Prescott v Legal Practitioners Conduct Board [2012] SASCFC 145; Walsh v Legal Practitioners Conduct Board [2016] SASCFC 52; Law Society of SA v Jordan (1998) 198 LSJS 434; Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154; Cameron v Cole (1944) 68 CLR571; Players Pty Ltd (In Liquidation) (Receivers and Managers Appointed) v Clone Pty Ltd (2013) 115 SASR 547; McAdam v Robertson (1999) SASC 169; Viscariello v Legal Practitioners Disciplinary Tribunal [2015] SASC 116; Johns v Australian Securities Commission (1993) 178 CLR 408; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; Vakauta v Kelly (1989) 167 CLR 568; Viscariello v Legal Practitioners Conduct Board (No 2) [2013] SASCFC 27; Rogers v The Queen (1994) 181 CLR 251, discussed.

Viscariello v Legal Practitioners Conduct Board [2013] HCATrans 149; Viscariello v Legal Practitioners Conduct Board [2013] HCASL 188; Patel v The Queen (2012) 247 CLR 531; O'Reilly v Mackman [1983] 2 AC 237; Hall v City of Burnside [2006] SASC 283, (2006) 102 SASR 298; Coober Pedy Roadhouse Pty Ltd v Disctrict Council of Coober Pedy & Ors [2020] SASC 25; Hardess v Beaumont [1952] VicLawRp 83; [1953] VLR 315; Pertl v Kahl (1976) 13 SASR 433; Vansetten v State of South Australia [2020] SASC 158; Viscariello v Tamasauskas (No 3) [2019] SASC 79; McDonald v State of South Australia [2018] SASC 41; Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed) (2018) 264 CLR 165; Glenmont Investments Pty Ltd v O’Loughlin (No 6) [2001] SASC 287; Bailey v Marinoff (1971) 125 CLR 529; Gamser v Nominal Defendant (1977) 136 CLR 145; University of Wollongong & Ors v Metwally (No 2) (1985) 59 ALJR 481; Copping & Ors v ANZ McCaughan Ltd & Ors (1997) 67 SASR 525; Wentworth v Woollahra Municipal Council (1982) 149 CLR 672; State Rail Authority (NSW) v Codelfa Construction Pty Ltd (1982) 150 CLR 29; Viscariello v Legal Practitioners Conduct Board (No 2) [2013] SASCFC 27; Legal Practitioners Conduct Board v Viscariello [2013] SASCFC 37, considered.

VISCARIELLO v THE LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL & ANOR
[2021] SASCFC 18

Full Court: Lovell & Hughes JJ and Tilmouth AJ

LOVELL J:

1. I agree generally with the reasons of Hughes J and the orders she proposes.  However, on one point, I add the following remarks.

2. There is no doubt, as explained by Hughes J, that the Full Court, when determining the appeal in Viscariello v Legal Practitioners Conduct Board[1] (the Tribunal Appeal),[2] reached its own conclusions as to the nature and character of Mr Viscariello’s actions the subject of the charges. That appeal was by way of rehearing and the Full Court was required to conduct a real review of the evidence. It clearly did so. The Full Court found that not only were the findings of the Tribunal open to it, but that the evidence “overwhelmingly supported the conclusion that the charges had been made out”.[3]

   [1] [2012] SASCFC 147.

   [2]     The Tribunal Appeal dealt with an appeal by Mr Viscariello against the finding of guilt of two counts of unprofessional conduct by the Legal Practitioners Disciplinary Tribunal. An application by the Legal Practitioners Conduct Board to strike Mr Viscariello off the roll of legal practitioners was also heard alongside the Tribunal Appeal. The Full Court did not make an order striking off Mr Viscariello, but determined to hear the parties as to the appropriate orders to be made in the disciplinary proceedings. Subsequently, the Full Court ordered Mr Viscariello’s name be struck off the roll of practitioners in a judgment delivered in 2013. In their judgment, that Full Court adopted the reasons provided by the Full Court in the Tribunal Appeal in relation to their decision finding Mr Viscariello engaged in unprofessional conduct.

   [3] [2012] SASCFC 147 at [11].

3. The respondent submitted that the conclusions reached in that earlier Full Court decision were a barrier to success on this appeal as the Full Court had “independently” reached its conclusions. The appellant argued before this Court that the earlier Full Court, in reaching its conclusions, was exercising its statutory jurisdiction and, as on the appellant’s argument the charges were laid invalidly, the Tribunal had no jurisdiction and therefore the Full Court did not have jurisdiction. I reject the appellant’s argument.

   Jurisdiction of the Supreme Court

4. The Tribunal Appeal heard by the Full Court was governed by s 89 of the Legal Practitioners Act 1981.[4]

   [4]     As at 30.1.2012 to 16.6.2013.

5. Section 89 relevantly states:-

   89—Proceedings before Supreme Court

   (1)Where the Tribunal after conducting an inquiry into the conduct of a legal practitioner recommends that disciplinary proceedings be commenced against the legal practitioner in the Supreme Court, the Board, the Attorney-General or the Society may institute disciplinary proceedings in the Supreme Court against the legal practitioner.

   (2)In any disciplinary proceedings against a legal practitioner (whether instituted under this section or not) the Supreme Court may exercise any one or more of the following powers:

   (a)     it may reprimand the legal practitioner;

   (b)     it may make an order imposing conditions on the legal practitioner’s practising certificate (whether a practising certificate under this Act or an interstate practising certificate)—

   (i)relating to the practitioner’s legal practice; or

   (ii)requiring that the legal practitioner, within a specified time, complete further education or training, or receive counselling, of a specified type;

   (c)     it may make an order suspending the legal practitioner’s practising certificate (whether a practising certificate under this Act or an interstate practising certificate) until the end of the period specified in the order or until further order;

   (d)     it may order that the name of the legal practitioner be struck off the roll of legal practitioners maintained under this Act or the roll kept in a participating State that corresponds to the roll maintained under this Act;

   (e)     it may make any other order (including an order as to the costs of proceedings before the Court and the Tribunal) that it considers just.

   (3)This Part does not derogate from the inherent jurisdiction of the Supreme Court to discipline legal practitioners.

   …

   (5)In any disciplinary proceedings—

   (a)     the Supreme Court may, without further inquiry, accept and act on any findings of the Tribunal or of a Judge or Master to whom a matter has been referred for investigation and report under subsection (4); and

   (b)     the Supreme Court may—

   (i)receive in evidence a transcript of evidence taken in any proceedings before a court of any State and draw any conclusions of fact from the evidence that it considers proper;

   (ii)adopt, as in its discretion it considers proper, any findings, decision, judgment or reasons for judgment of any such court that may be relevant to the proceedings.

   (6)Where the Supreme Court is satisfied, on the application of the Board, the Attorney-General or the Society, that a legal practitioner is disqualified or suspended from practice under the law of any other State (whether or not that State is a participating State), it may, without further inquiry, impose a corresponding disqualification or suspension under the provisions of this section.

   (Emphasis added)

6. The appellant argued that s 89(1) creates a statutory jurisdiction for disciplinary action to be taken by the Supreme Court. Whether s 89(1) creates a statutory jurisdiction or simply creates a mechanism to bring the matter before the Supreme Court which then exercises its inherent jurisdiction was not argued on appeal. It is unnecessary to decide that question. Assuming for the moment, as argued by the appellant, that it creates a statutory jurisdiction, s 89(3) specifically preserves the inherent jurisdiction of the Court to discipline practitioners. To put that another way, if the appellant is correct and s 89(1) creates a statutory jurisdiction to discipline legal practitioners, it must be a jurisdiction that is concurrent with the inherent jurisdiction of the Court.

7. The general rule is that the validity of an administrative act is not necessarily impugned by there having been a mistake as to the source of power stated by the decision-maker as that upon which reliance was placed. That is, the validity of the determinations is unaffected by the Full Court mistaking the source of its power to make them.[5]

   [5]    Brown v West (1990) 169 CLR 195 at 203; Lockwood v The Commonwealth (1954) 90 CLR 177 at 184; Newcrest Mining (WA) Ltd & Anor v BHP Mineral Limited & The Commonwealth (1997) 190 CLR 513, 618.

8. As McHugh J stated in Johns v Australian Securities Commission,[6] it is not a question of intention but of power, from whatever source derived. Heydon J stated in Eastman v Director of Public Prosecutions (ACT):[7]

   "If the maker of an administrative decision purports to act under one head of power which does not exist, but there is another head of power available and all conditions antecedent to its valid exercise have been satisfied, the decision is valid despite purported reliance on the unavailable head of power."

   (Footnote omitted)

   [6] (1993) 178 CLR 408, 469.

   [7] (2203) 214 CLR 318 at [124].

9. Thus, even if the appellant establishes that, due to defects in the process, the Full Court did not have the statutory jurisdiction when it decided the Tribunal Appeal,[8] that Full Court clearly had the power to decide the case exercising its inherent jurisdiction.

   [8] [2012] SASCFC 147.

10. This approach is consistent with the Full Court decision in Viscariello v Legal Practitioners Disciplinary Tribunal.[9] That matter came about in the following circumstances. On 3 May 2014 and 30 June 2014, the appellant applied for permission to proceed with judicial review (on different grounds to the current proceedings) of the findings and recommendation of the Tribunal.  The appellant also sought an extension of time in relation to the applications. The applications were heard by Parker J. The appellant also lodged an application pursuant to r 242 of the Supreme Court Civil Rules 2006 seeking a review of the Court’s decision in the Tribunal Appeal.[10] The hearing of that application was deferred pending Parker J’s decision on the permission to proceed with judicial review.

    [9]     Viscariello v Legal Profession Conduct Commissioner [2016] SASCFC 107.

    [10] [2012] SASCFC 147.

11. On 7 August 2015, Parker J declined to extend time to allow the appellant to seek permission to proceed with the applications for judicial review and (to the extent necessary) also refused permission to proceed. The appellant appealed the decision of Parker J on a number of grounds. On 25 September 2015, Kourakis CJ ordered that the appeal and the r 242 application be consolidated.

12. The appeal was heard in 2016 and the appeal against the orders of Parker J was dismissed as was the application pursuant to r 242.[11]

    [11]   Viscariello v Legal Practitioners Disciplinary Tribunal; Viscariello v Legal Profession Conduct Commissioner [2016] SASCFC 107.

13. When dismissing the appeal and the r 242 application Kourakis CJ stated:[12]

    The Full Court made its own findings before imposing a sanction pursuant to s 89(2) of the LPA. It is immaterial whether the Full Court dismissed the appeal and then accepted and acted on the Tribunal’s finding pursuant to s 89(5) of the LPA, or, made its own findings on the face of the transcript as evidence it received in the disciplinary proceedings. On either view, the decision of the Supreme Court on the Full Court appeal and in the disciplinary proceedings was made independently of the Tribunal’s determination.

    (Emphasis added)

    [12]   Viscariello v Legal Practitioners Disciplinary Tribunal; Viscariello v Legal Profession Conduct Commissioner [2016] SASCFC 107 at [77].

14. As Kourakis CJ found, the Full Court made findings independent of the Tribunal’s determination. The making of those findings leading to the disqualification of Mr Viscariello fell within the Supreme Court’s inherent jurisdiction to discipline legal practitioners, even if the institution of disciplinary proceedings was not authorised by s 89(1). In those circumstances, it was not appropriate to use r 242 to overturn the findings. The same reasoning applies in this matter. There is no basis for using r 242 to interfere with the findings of the earlier Full Court determination.

    HUGHES J:

    Introduction - What the appellant seeks

15. By this appeal the appellant sought to overturn orders summarily dismissing his application for judicial review in proceedings SCCIV 691/2018. The appellant also requested that this Court determine and grant his application for judicial review and determine and grant an application under rule 242 of the Supreme Court Civil Rules 2006 to re-open, and set aside, the orders of the Full Court made on 21 December 2012[13] and 21 May 2013.[14] Under those orders, the appellant’s name was removed from the roll of legal practitioners.

    [13]   In respect of SCCIV -12-597 and SCCIV-12-607.

    [14]   In respect of SCCIV-12-607. The appellant submits that “in the event that the Full Court considers that the application for summary judgment (sic: dismissal) should not have been granted, is (sic) for the Full Court itself to the (sic) determine the application for judicial review by deciding not only whether there is a reasonable basis for the Appellant’s claim but whether the claim should succeed and the orders sought by the Appellant made”.

    Outcome of this decision

1. In respect of the appeal against the summary dismissal of the application for judicial review, and in light of the evidence adduced on appeal, I would allow the appeal and dismiss the judicial review.

2. The appellant’s application under rule 242 to re-open the Full Court’s decisions of December 2012 and May 2013 was not summarily dismissed by the Judge. It remained to be determined. I would accede to the parties’ request to determine the application and I would dismiss the appellant’s rule 242 application on the basis that the justice of the case does not require the specified proceedings to be reopened.

   Factual background of the charges

3. This case concerns orders made removing the appellant’s name from the roll of practitioners and the process by which those orders were reached. It is necessary to describe some of the background. The appellant was the director of a company that was the corporate trustee of two trusts, each of which had land as assets. He was also a practising legal practitioner. One of the parcels of land controlled by the trust was the subject of a development application. The application was refused and the ensuing litigation led to the appellant giving evidence in a proceeding in the Supreme Court in December 2006. The Court’s decision published in July 2007[15] contained findings of credit that were adverse to the appellant. The presiding Judge referred his findings to the Legal Practitioners Conduct Board (“the Board”) for its investigation. At the relevant time, the Board had a function of investigating complaints and laying disciplinary charges in the Legal Practitioners Disciplinary Tribunal (“the Tribunal”) pursuant to Part 6 of the Legal Practitioners Act 1981 as it was in force at that time.[16] In particular, the Board had the function of making investigations into the conduct of a legal practitioner whom the Board had reasonable cause to suspect has been guilty of unprofessional or unsatisfactory conduct. The Board also had the function of taking action following an investigation, which action might include laying a disciplinary charge of unprofessional or unsatisfactory conduct on the part of the practitioner before the Tribunal.

   [15]   Moyes & Anor v J & L Developments Pty Ltd & Anor(No 2) [2007] SASC 261 (Debelle J).

   [16]   Neither of the parties on appeal identified a version of the Act that they contended was applicable to the issues to be determined. The Judge advised the parties that she was operating from the iteration in force as it appeared between 11 Dec 2003 and 3 Sept 2006 – see Transcript of proceedings on 7 September 2018 in Viscariello v Legal Practitioners Disciplinary Tribunal & Anor (SCCIV-18-691) at page 25. This appears to coincide with the conduct that is the subject of the charges. The iteration in force when the charges were determined to be laid was that in force between 1 June 2007 and 31 January 2010. In any event there was no submission, and I have found no reason to believe, that the provisions relied upon altered in any, or any material, way during the relevant period. In this decision the references to provisions within the Act are to those which were in force between 1 June 2007 and 31 January 2010 unless it otherwise appears.

4. Following an investigation which included obtaining the appellant’s responses to various enquiries, the Board discharged its function of deciding whether to take action in respect of the appellant over several meetings. It did so by way of consideration of written reports authored by the Board’s Principal Legal Officer, some of which had annexed to them legal opinions from counsel retained by the Board to advise it in the matter.[17] The Board decided to take action in respect of the appellant.

   [17]   First Affidavit of Mr May dated 18 July 2018 at [20]-[29].

5. The Board caused a charge to be filed in the Tribunal on 20 August 2008 (“the first charge”).[18] It alleged two counts of unprofessional conduct under the Legal Practitioners Act 1981. This commenced proceedings 18/2008 in the Tribunal.

   [18]   Ibid at exhibit GMM 8.

6. At a directions hearing on 26 November 2008 for the first charge, a representative of the Board informed the Tribunal that the Board was conducting further investigations into a separate allegation against the appellant.

7. In respect of this allegation the Board laid a second charge of two counts of unprofessional conduct in the Tribunal on 2 February 2009 which commenced proceedings 3/2009 (“the second charge”).

8. The second charge concerned an allegation that in the period between November 2004 and 17 August 2005 the appellant, in his capacity as a solicitor, pursued a claim for contribution on behalf of J & L Developments under the Fences Act 1975, and that the claim was not reasonably arguable. The appellant had sought fencing costs from the occupants of the property next to the parcel of land owned by J & L Developments for the building of a fence between the two pieces of land. The fence was erected by J & L Developments despite a notice of objection being sent to it by the occupants of the adjoining land within the timeframe stipulated in the Fences Act 1975. The appellant unsuccessfully pursued a claim in the Adelaide Magistrates Court for the fencing costs and made unsubstantiated allegations about the occupants’ conduct. The claim was dismissed and the occupants were awarded costs which the appellant did not make the necessary arrangements to pay until the occupants initiated an enforcement claim against his client.

9. The proceedings on the two charges were heard together in a hearing that commenced on 27 April 2010. The appellant and the Board were both represented by counsel. In respect of the second charge, the hearing proceeded by way of a statement of agreed facts which conceded unsatisfactory conduct. The hearing was adjourned on several occasions. The first charge was amended during the proceedings and the Board caused the amended first charge to be filed in the Tribunal on 13 December 2011. The hearing concluded on 14 December 2011.

10. The Tribunal published a report and made orders on 12 April 2012.[19] In respect of action 18/2008, the Tribunal found the appellant guilty of two counts of unprofessional conduct and its orders recommended that disciplinary proceedings be commenced in the Supreme Court against the appellant.[20] In respect of action 3/2009, the Tribunal made a finding of unsatisfactory conduct based on the statement of agreed facts, and reprimanded the appellant.[21]

    [19]   First Affidavit of Mr Viscariello dated 19 June 2018 at exhibits JV9 and JV10.

    [20]   Report of the Legal Practitioners Disciplinary Tribunal dated 3 April 2012 at [111] and Orders of the Legal Practitioners Disciplinary Tribunal at order 1.

    [21]   Ibid at [116] and at order 2.

11. The appellant appealed the recommendation and orders to the Supreme Court.[22] The Board commenced disciplinary proceedings in the Supreme Court.[23]

    [22]   SCCIV-12-597.

    [23]   SCCIV-12-607.

12. The Full Court heard the appellant’s appeal and the Board’s disciplinary action together.[24] The appellant and the Board were both represented by counsel. The appellant’s grounds related to alleged errors in the Tribunal’s factual findings. The impugned findings were that the appellant amended a trust deed to attempt to defeat the adverse costs order, that he changed the trustee of a company to attempt to defeat the adverse costs order, that the company acted as a trustee and not in its own right in applying for development consent, and that the appellant gave false evidence before the Supreme Court.

    [24]   Viscariello v Legal Practitioners Conduct Board [2012] SASCFC 147.

13. On 21 December 2012, the Full Court dismissed the appeal.[25] The appellant applied to re-open the appeal, asserting that facts had been misapprehended, that the use to which evidence was put in the Tribunal was wrong, and various other contentions concerning the characterisation of the transactions underlying the impugned conduct reached by the Tribunal. On 12 April 2013, the Court rejected each of the arguments, finding that most of the arguments could have been ventilated in the appeal but were not, and that all of the arguments were unmeritorious in any event.[26]

    [25] Ibid.

    [26] [2013] SASCFC 27.

14. On 10 May 2013, the appellant sought special leave from the High Court to appeal the Full Court’s refusal. On 21 May 2013, the Full Court made orders on the disciplinary proceedings. The appellant’s name was ordered to be removed from the roll of practitioners. The appellant applied for special leave to appeal that decision from the High Court, and a stay. The application for a stay was rejected on 17 June 2013[27] and the appellant’s two applications for special leave were refused by the High Court on 3 December 2013.[28]

    [27]   Viscariello v Legal Practitioners Conduct Board [2013] HCATrans 149 at 28 (lines 1195-1203) and 30 (lines 1308-1318).

    [28]   Viscariello v Legal Practitioners Conduct Board [2013] HCASL 188 at [6] – [7] (Bell and Gageler JJ).

    The proceedings giving rise to this appeal

15. In proceedings 691/2018 filed in this Court in June 2018, the appellant sought to challenge, by way of judicial review, the recommendations and orders of the Tribunal on the basis that the Tribunal lacked jurisdiction to make them because neither of the Board’s charges were properly laid or proceeded with.

16. The respondents named in the proceedings are the Legal Practitioners Disciplinary Tribunal and the Legal Profession Conduct Commissioner, the latter being the successor to the functions of the Legal Profession Conduct Board. As the Tribunal abides the event, the Commissioner is the only active contradictor and in this decision the Commissioner is referred to as “the respondent”.

17. In broad terms, the appellant contended that first and second charges were not initiated, laid and proceeded with in the manner required by the Legal Practitioners Act 1981. As a result of the defects in process, the appellant says that the Tribunal’s recommendations and orders were a nullity, void or otherwise invalid and of no legal force or effect. It follows, he submitted, that the disciplinary proceedings in the Supreme Court, by which his name was removed from the roll of practitioners, were tainted by the absence of jurisdiction in the Tribunal. The appellant sought to have the judicial review determined by the Full Court, and to contemporaneously re-open and have set aside the Full Court’s orders from 2012 and 2013.

18. The appellant’s case had two strands and the relationship between those has perhaps only become clear on appeal. As a result of a lack of clarity about that issue, the effect of the Judge’s orders upon the appellant’s actions needs to be considered before proceeding further.

19. The appellant’s proceedings in 681/2018 did not reach even a consideration of his interlocutory application for a referral to the Full Court. The respondent made an application for summary dismissal which was granted. The appellant’s application for judicial review was thereby dismissed. That gave rise to the appeal currently before this Court. The matter about which the parties were uncertain is whether the decision under appeal disposed of the whole of the appellant’s proceedings in 681/2018.

20. The appellant’s approach to the uncertainty was to seek orders from this Court that his appeal against the summary dismissal be allowed, and that the proceedings he commenced for judicial review and pursuant to rule 242, be heard and determined by this Court. This is, in effect, what he sought when he commenced the 681/2018 proceedings; the determination of his claims by the Court constituted in a manner capable of opening and setting aside this Court’s earlier orders in 2012 and 2013.

21. The respondent’s primary position was to defend the summary dismissal by the Judge and have the appeal dismissed. However, the respondent also took steps to address this Court as if the appellant’s proceedings might be determined afresh. In other words, the respondent proceeded as if this Court would effectively re-hear the appellant’s case. Before the appeal came on for hearing, the respondent sought to adduce further evidence, in the form of the Fifth Affidavit of Mr May sworn on 23 March 2020, in support of the contention that the appellant’s substantive case had no reasonable basis.

22. It is necessary, therefore, to identify the effect of the decision that is the subject of the appeal and how the proceedings below informed that outcome. The appellant’s initiating documents were comprised of a summons, statement of grounds and an affidavit. The summons was brought on the form under rule 200A(1) and issued on 19 June 2018. It stated that the plaintiff brought “a claim for judicial review”, naming as respondents the Legal Practitioners Disciplinary Tribunal and the Legal Profession Conduct Commissioner. It stated that it was issued pursuant to rules 199(2)(a), 200, 200A, 201 and 242 of the 2006 Rules and rule 46(4) of the 2014 Rules. Relevantly, rule 200 governs the bringing of an action for judicial review and rule 242 enables an application to be brought to re-open proceedings that have been determined.

23. The appellant’s Statement of Grounds in support of the judicial review referred, in paragraph 1(a), to judicial review and thereafter set out grounds for the granting of relief. The Statement of Grounds for review made no reference to a rule 242 application but sought orders which include “setting aside all of the Orders made [by] the Supreme Court of South Australia … which followed consequent on the Tribunal’s Report with Findings published on 3 April 2012 and the Recommendations and Orders made by the Tribunal on 12 April 2012…”.

24. The Summons and Statement of Grounds were accompanied by an Interlocutory Application for Permission to Proceed with the action for judicial review (FDN 3), and an affidavit of Mr Viscariello (FDN 4), all filed 19 June 2018. The interlocutory application sought permission to proceed and sought an extension of time “to the extent necessary”. The interlocutory application made no reference to the rule 242 application. However, the supporting affidavit sworn 19 June 2018 contained the following heading:

    Affidavit of John Viscariello supporting an action for judicial review (certiorari) and an action brought under Rule 242 of the SC Rules

25. Paragraphs 9 and 10 of the affidavit addressed the rule 242 application as follows:

    In the alternative, relief is also sought under Rule 242 of the SC Rules

    9 In the alternative and to the extent necessary, I also seek relief under Rule 242 of the SC Rules relying on the legal principles governing the application of that Rule as espoused in the case of Players Pty Ltd (in liq) (res apptd) v Clone Pty Ltd [2013] SASCFC 25 in particular at paragraphs [56] to [72] per Justices Gray, Blue and Stanley JJ the inherent jurisdiction of this Honourable Court.

    10I contend that the facts, matters and circumstances set out in this Action for Judicial Review are such that the justice of the case requires that this Court make the orders sought in my Statement of Grounds under Rule 242 of the SC Rules.

26. The summons and all subsequent documents were assigned SCCIV 691/2018 as an action number.

    The interlocutory stages of the respondent’s application for summary dismissal

27. When the proceedings were brought on for directions before a Judge of this Court in the chambers list on 29 June 2018, the fact that the proceedings encompassed two alternative or interdependent actions was not raised. The focus of that hearing was whether the appellant needed permission to proceed or an extension of time and whether the whole of the proceedings might be referred to the Full Court. There was no engagement by the parties at that point in time with the fact that the orders sought by the appellant under rule 242, setting aside a decision of the Full Court, could only be made by the Full Court.[29] The proceedings were adjourned to the next chambers list to enable the respondent to file its response to the proceedings.

    [29]   By virtue of the fact that the matter that was sought to be re-opened was a matter that had been decided by the Full Court, in SCCIV-12-607.

28. The response to the application for judicial review was filed on 13 July 2018. It engaged only briefly with the appellant’s “alternative” application by denying the relief sought. Shortly after filing its response, the respondent filed an application for summary dismissal (FDN 9). The application was amended and the application that proceeded was dated 30 July 2018.[30]  The application sought the following orders:

    1.That the Judicial Review proceedings be summarily dismissed, without a full hearing, pursuant to Rule 200C.

    2.That the time for bringing this application pursuant to Rule 200C(1) be extended Nunc Pro Tunc, until 18 July 2018.

    3.In the alternative to paragraph 1, that the Court enter summary judgement dismissing the action, pursuant to Rule 232.

    4.In the alternative to paragraphs 1 and 3, that the proceeding be dismissed, pursuant to Rule 193.

    5.In the alternative to paragraphs 1, 3 and 4, that the proceeding be struck out pursuant to Rule 117(2)(e).

    6.     …. [further orders not relevant to this appeal]

    [30]   First Affidavit of Mr May dated 18 July 2018 at [8.2]. The affidavit was sworn in support of the application for dismissal but also in partial compliance of the obligation to file a response.

29. The respondent’s application for summary dismissal referred to “the Judicial Review proceedings”, “the action” and “the proceeding”. Whilst the rule 242 application was not expressly engaged on the face of the application for summary dismissal, it is evident from the respondent’s written submissions in support of the application for summary dismissal[31] that it sought to bring an end to both the judicial review and the rule 242 application.

    [31]   Summary of Argument of the Second Defendant on strike out/ dismissal/ judgement/ security for costs dated 8 August 2018 at [5]-[25]. See also, paragraph 4(f) where the Respondent acknowledges the Plaintiff’s Rule 242 argument and describes it as a claim for “relief” and an “order”. Thereafter, the Respondent makes argument about the “judicial review application” eg at [33], [36].

30. The reasons advanced for the summary dismissal in those written submissions were:

    ·The facts alleged by the appellant in his Statement of Grounds were wrong;[32]

    ·The Judicial Review was so late it should be struck out;[33] and

    ·The rule 242 application should be struck out “for the same reasons”.[34]

    [32]   Ibid.

    [33] Ibid at [24].

    [34] Ibid at [37].

31. The respondent’s approach to the application for summary dismissal was primarily directed at establishing that the process taken by the Board was regular and the result was valid charges laid properly in the Tribunal. The respondent relied on the First Affidavit of Mr May to which were annexed various documents that the respondent contended established that the proceedings that the appellant sought to impugn had been properly brought, without procedural irregularity, and disposed of properly by the Tribunal. The respondent also relied upon the various occasions upon which the appellant had previously exercised rights in respect of the Tribunal’s orders and in particular his unsuccessful appeal against the Tribunal’s orders and the significant passage of time since the Tribunal’s orders (being some six years) in support of the exercise of discretion to bring an end to the appellant’s challenges to his removal from the roll.

32. In response, the appellant’s written submissions on the summary dismissal application, dated 9 August 2018, contended amongst other things, that “there are no time limits on a proceedings brought under rule 242 of the SC Rules”.[35] The appellant thereby identified that the relationship between the judicial review and rule 242 applications might require some consideration. However, the further written submissions of both parties maintained a focus upon the substantive arguments as to whether the Board and Tribunal had properly undertaken their respective functions in 2012, rather than on the relationship between the appellant’s judicial review and rule 242 applications. This provides some explanation as to why the rule 242 application receded into the background when the summary dismissal application came on for hearing.

    [35] At [5].

    The hearing of the summary dismissal application

1. The oral argument on the respondent’s application for summary dismissal was heard over four occasions. The appellant represented himself at the hearing. The respondent’s application was put as an application “to strike out the whole of the proceedings”.[36] The respondent’s First Affidavit of Mr May established the process by which the Board had laid the charges in the Tribunal. The argument on the strike out application was punctuated by a decision by the Judge to satisfy herself, because of doubts raised by the appellant, that certain documents exhibited to the respondent’s affidavit, were true copies of extracts of the Board’s minutes of meetings.[37] This entailed requiring the Board to provide a large volume of documents to the Court for the Judge to peruse.

   [36]   Transcript of proceedings on 27 July 2018 in Viscariello v Legal Practitioners Disciplinary Tribunal & Anor (SCCIV-18-691) at page 3.

   [37]   Transcript of appeal hearing on 8 April 2018 in Viscariello v Legal Practitioners Disciplinary Tribunal & Anor (SCCIV-18-691) at page 63. There are extracts which are individual items from the minutes without the other items.

2. Over the course of the oral argument, the respondent advanced his position regarding the appellant’s delay and his account of the process by which the First Charge, the Amended First Charge, the Second Charge and the Amended Second Charge were laid before, and decided by, the Tribunal.

3. In order to defeat the application for summary dismissal, the appellant advanced arguments as to the invalidity of the Tribunal’s orders arising from alleged irregularities in the charges, the reasons for the significant effluxion of time between those events and the current proceedings (being his recent discovery of the facts upon which the proceedings are based, through a freedom of information process), and the implications of the findings he contended for, namely that there had been “no decision [by the Tribunal] at all”.[38]

   [38]   Transcript of proceedings on 9 August 2018 in Viscariello v Legal Practitioners Disciplinary Tribunal & Anor (SCCIV-18-691) at page 50.

   What did the Judge decide?

4. The Judge reserved her decision on the summary dismissal application and later published reasons.  The Judge granted the respondent’s application on two independent grounds; delay and prospects of success on the merits.

5. The Judge briefly set out the history of the laying of the two charges by the Board in the Tribunal against the appellant, followed by the findings made by the Tribunal in its report, the appellant’s appeal, his application to re-open the appeal, the first application for special leave to the High Court, the Full Court’s orders striking the appellant’s name from the roll of practitioners, the second application for special leave to the High Court and its refusal along with the refusal of the first application for special leave, and two earlier judicial review actions brought in 2014 in respect of the same orders but on different grounds. In respect of each application, leave to proceed was refused and the refusals were upheld by the Full Court in actions SCCIV-14- 673 and SCCIV-14-806.[39]

   [39]   With reference to, Viscariello v Legal Practitioners Disciplinary Tribunal; Viscariello v Legal Profession Conduct Commissioner [2016] SASCFC 107 (Kourakis CJ, Nicholson J and Chief Judge Muecke).

6. The Judge set out the salient events of the interlocutory steps that led to the listing for argument of the respondent’s application for summary dismissal before her. The Judge explained why she felt it appropriate to call for and review the Board’s minutes. Her Honour summarised the appellant’s complaints regarding the Board’s processes with respect to the First, First Amended, Second and Second Amended charges.

7. The Judge referred to the requirement under rule 200 that the judicial review action was required to be commenced as soon as practicable and in any event within six months of the grounds of review arising. Her Honour described the two arguments that the appellant had advanced with respect to that time limit, namely that he was within time or, if not, ought to be granted an extension.[40] The Judge set out in some detail the appellant’s case regarding his contention that the grounds had arisen less than six months prior to his institution of the current proceedings.

   [40]   Viscariello v Legal Practitioners Disciplinary Tribunal & Anor [2019] SASC 98 at [39]-[40] (Bampton J).

8. Her Honour then set out the rules of the Tribunal, as they then were, relevant to the laying of charges.[41]

   [41] Ibid at [46]-[48] (Bampton J).

9. Under the heading “analysis” in the judgment, her Honour then stated the two propositions upon which her decision to grant the respondent’s application for summary dismissal was based. The first of these was that the judicial review “is so late that it should be struck out on that ground alone”, which was accompanied by a passage from the leading authority of Hall v Burnside.[42]

   [42] Ibid at [49]-[50] (Bampton J).

10. Her Honour stated that the interlocutory history of the charges and the proceedings before the Tribunal led to the further conclusion that the appellant’s grounds were “so obviously untenable that they cannot succeed”.[43] The Judge then proceeded to establish the basis for those propositions. Her Honour assessed, over several pages, the evidence that had been adduced by the parties. Her Honour gave an advance indication that the effect of that evidence was to satisfy her that “each ground asserted by Mr Viscariello is without any factual basis”.[44]

    [43] Ibid at [51] (Bampton J).

    [44] Ibid at [54] (Bampton J).

11. The Judge identified what she considered to be the essential evidence regarding the first charge, namely GMM 7 and 8 exhibited to the First Affidavit of Mr May sworn on 18 July 2018. Her Honour stated that she was satisfied that the Board passed a resolution to charge the appellant with the first charge and that the Board directed the Director of the Board to ensure that first charge was signed, filed and served.[45]

    [45] Ibid at [56] (Bampton J).

12. Her Honour proceeded to refer to GMM 11 exhibited to the First Affidavit of Mr May and stated that she was satisfied, based on that document, that the Board resolved to lay the Second Charge and that the Board directed the Director to ensure that it was signed, filed and served.[46]

    [46] Ibid at [60] (Bampton J).

13. The Judge set out in some detail the events that led to the Tribunal’s disposition of the Second Amended Charge. This culminated in the Judge setting out the content of exhibits GMM 37 and GMM 38 to the First Affidavit of Mr May, which provided evidence of the fact that in the Tribunal hearing of 9 December 2011, leave was granted to the Board to amend the First and Second Charges.

14. As to whether the appellant had a reasonable basis for his action, the Judge accepted the evidence adduced by the respondent in the First Affidavit of Mr May and concluded that the factual basis for the appellant’s action had been fatally undermined. She concluded that the appellant’s substantive grounds were “without any factual basis”.[47] Her Honour’s reasons are set out in [55] to [86]:[48]

    [47] Ibid at [54] (Bampton J).

    [48]   Viscariello v Legal Practitioners Disciplinary Tribunal & Anor [2019] SASC 98 (Bampton J).

    The Board’s resolution to lay the first charge

    GMM7 is an extract of the Board’s minutes of a meeting held on 13 December 2007 where the Board resolved that it was satisfied that there was unprofessional conduct on the part of Mr Viscariello and directed that a charge of unprofessional conduct be laid before the Tribunal pursuant to s 82 of the Act. The Board also authorised the Director of the Board (“the Director”) to sign the charge on behalf of the Board and authorised the Board’s solicitor to retain senior counsel and junior counsel to provide advice, draft and/or settle charges, and to represent the Board before the Tribunal. This was the decision to lay a charge of unprofessional conduct, the subject of the first charge.

    I am satisfied that the Board passed a resolution to charge Mr Viscariello with the first charge and directed the Director to carry out the necessary processes to ensure the first charge was signed, filed, and served.

    Following the Board’s resolution, a charge was laid with the Tribunal on 20 August 2008. GMM8 is a copy of the charge dated 20 August 2008 and signed by the then Director, Ms Rathbone, in the 2008 action.

    Ms Billich deposes in her second affidavit sworn on 8 August 2018 that on 22 August 2008 Mr Viscariello was served personally with the first charge and a covering letter by Mr Brenton Kitson of Adelaide Investigation Services. Exhibited to Ms Billich’s affidavit is a copy of an affidavit of service sworn by Mr Kitson on 25 August 2008. Mr Kitson’s affidavit exhibits the first charge dated 20 August 2008 signed by Ms Rathbone.

    GMM10 is the transcript of a directions hearing convened by the Chairperson of the Tribunal on 26 November 2008. Mr Kolarovich, the then Deputy Director of the Board, attended on behalf of the Board and informed the Tribunal that further investigations were continuing into the conduct of Mr Viscariello and that there was a possibility of a further charge being laid. Mr Griffin QC represented Mr Viscariello at this hearing.

    The Board’s resolution to lay the second charge

    GMM11 is an extract of the Board’s minutes of the meeting held on 29 January 2009. This document records that on 29 January 2009 the Board resolved that a second charge of unprofessional conduct would be laid against Mr Viscariello with the Tribunal and authorised the Director to sign the charge on behalf of the Board. I am satisfied that the Board resolved to lay the second charge and directed the Director to carry out the necessary processes to ensure that the second charge was signed, filed, and served.

    The Commissioner deposes in his first affidavit that Ms Billich obtained a copy of the second charge in the 2009 action from the Tribunal’s Registry which, when filed at the Tribunal, was stamped with a received date of 2 January 2009. The signature of the then Director and the date 2 February 2009 appear on the last page of the document. The Commissioner concludes that the received stamp date must be an error. GMM13 is an internal Board document, dated 2 February 2009, which instructs the Board’s rounds person to file the second charge with the Tribunal Registry. GMM14 is a copy of a letter to Mr Viscariello dated 2 February 2009 enclosing a copy of the second charge and advising that a copy had also been forwarded to his counsel Mr Griffin QC. GMM15 is an affidavit of service sworn by Mr Kitson deposing to having served Mr Viscariello personally with the second charge and covering letter on 2 February 2009.

    It is reasonable to infer that the second charge was filed 2 February 2009.

    GMM16 records that Mr Homburg of Fountain Bonig wrote to the Deputy Director of the Board by letter dated 24 February 2009 advising that he now acted for Mr Viscariello and enclosing a notice of address for service in the 2008 action and the 2009 action.

    GMM17 is a copy of an interlocutory application for further and better particulars of the second charge filed in the Tribunal by Mr Homburg.

    Amendment of the second charge

    GMM18 is the transcript of the argument for the further and better particulars heard by the Tribunal on 4 March 2010. It is to be noted that at pages 19 to 20 of the transcript, the Chairperson of the Tribunal referred to concerns he had with the wording of the second charge. Counsel for the Board suggested that the second charge could be amended, whereupon the Chairperson said that he wanted to see any proposed amendments before he gave leave to amend. Mr Viscariello was represented at this argument by Mr Hoile of counsel.

    GMM19 is a copy of the proposed amendments to the second charge which the Commissioner deposes were provided to the Board at its meeting on 15 March 2010.

    GMM20 is an extract of the Board’s minutes of the meeting held on 15 March 2010. The Commissioner deposes that on 15 March 2010 the Board’s Principal Legal Officer advised the Board that prior to amending the second charge an opinion should be obtained from senior counsel, Mr Whitington QC. The Board noted and accepted the Principal Legal Officer’s advice.

    GMM21 is an email from the Principal Legal Officer to the Board’s junior counsel, Ms Sheppard, referring to the proposed amendment to the second charge and detailing amendments suggested by the then Director. The email identifies that consideration had been given to whether it was necessary to refer the matter back to the Board for a resolution to file an amended second charge. The email refers to the Director considering that the Board did not need to pass a resolution in terms of the amended second charge as it did not relate to any additional conduct, nor add any additional conduct not already considered by the Board when resolving to lay the second charge initially.

    GMM22 is a letter dated 1 April 2010 forwarding a copy of the proposed amended second charge to Mr Homburg.

    GMM23 is an email dated 15 April 2010 sent by Mr Hoile to Board’s Principal Legal Officer stating that he required clarification of some particulars with respect to the proposed second charge, but confirming that Mr Viscariello’s instructions to him were that the charge could be amended by preparing a fresh document. Mr Hoile also stated in the email that “we will consent” to the amended second charge being formally made at the next hearing without convening the Tribunal beforehand.

    GMM24 is Mr Homburg’s letter to the Principal Legal Officer dated 20 April 2010 and GMM25 is the Principal Legal Officer response to Mr Homburg dated 20 April 2010 in relation to the amended second charge.

    GMM26 is a letter dated 21 April 2010 sent by the Principal Legal Officer to Mr Homburg attaching for his consideration “a copy of further amended charges”. The letter seeks Mr Homburg’s comments in relation to the amendments as a matter of urgency.

    GMM28 is the transcript of the Tribunal directions hearing held on 22 April 2010. Ms Sheppard appeared for the Board and Mr Homburg appeared for Mr Viscariello. Ms Sheppard informed the Chairperson that the second charge had been reworded and that there was no longer any opposition to the application to amend the document. Ms Sheppard said that she was in a position to finally amend the charge. Mr Homburg is recorded as informing the Chairperson, “We don’t oppose the amended charge being laid”. Accordingly, the Chairperson granted leave to the Board to amend the second charge dated 2 February 2009 in the 2009 action in terms of the amended charge initialled by him dated 22 April 2010. The document initialled by the Chairperson and signed by the then Director appears behind GMM28.

    GMM29 is an email from Mr Homburg to the Board attaching Mr Viscariello’s responses to the first charge and to the amended second charge.

    GMM30 is an extract of the Board’s minutes of the meeting held on 27 April 2010. The Commissioner deposes that at this meeting the Principal Legal Officer provided a report and legal advice to the Board as to the ongoing proceedings concerning Mr Viscariello before the Tribunal.

    Further amendment of the second charge and amendment of the first charge

    GMM31 is the transcript of the Tribunal hearing on 27 April 2010, wherein the Tribunal was advised by Mr Whitington QC that the Board may not proceed with aspects of the second limb of the second amended charge. The Tribunal hearing continued on 28 April 2010 when Mr Whitington QC advised the Tribunal that the parties had come to an agreement on the wording of a document which would deal the amended second charge. The document referred to as an agreed statement of facts represented an agreement on facts that characterised Mr Viscariello’s conduct with respect to the second charge as unsatisfactory. Mr Whitington QC described this in the transcript as “the first limb of the Fences Act count”. GMM32 is a copy of pages six and seven of the transcript of the hearing on 28 April 2010. Mr Wells QC appeared with Mr Hoile as counsel for Mr Viscariello at the Tribunal hearing.

    GMM33 is an email from Mr Homburg to the Board dated 21 July 2010 referring to the statement of agreed facts which states:

    I think the document ended up with Martin Hoile. The document in email form has subsequently traveled between Mr Viscariello and his counsel all of whom have contributed some edits. It is now in a form that I can submit to you for consideration.

    GMM34 is an email from Mr Homburg to the Board dated 9 November 2010 attaching Mr Viscariello’s edits to the statement of agreed facts.

    GMM35 is a letter written by the Principal Legal Officer to Mr Homburg dated 11 November 2010 with further proposed amendments regarding the statement of agreed facts.

    GMM36 is an extract of the Board’s minutes of the meeting on 18 May 2011, recording a resolution of the Board to “proceed with the prosecution of charges, action no’s 18 and 2008 and 3 of 2009 presently before the [Tribunal]”.

    GMM37 is a portion of the transcript of the Tribunal hearing, which continued on 9 December 2011, recording a discussion concerning the receipt of the agreed statement of facts. The Chairperson informed the parties “that there should be an amended charge” alleging unsatisfactory conduct in lieu of unprofessional conduct. The Chairperson granted leave to further amend the second charge on 9 December 2011.

    GMM37 also records that during the hearing on 9 December 2011 Mr Whitington handed up to the Tribunal copies of the first charge “noting on the charges certain aspects of the evidence given before Debelle J that we are not now pursuing on the counts”. Whereupon the Chairperson said, “And to that extent we grant leave to file that document”.

    GMM38 is a copy of the amended second charge in the 2009 action alleging unsatisfactory conduct. It is endorsed that it has been amended pursuant to leave granted by the presiding member on 22 April 2010 and by the Tribunal on 9 December 2011.

    GMM39 is the amended first charge in the 2008 action bearing an endorsement that it has been amended pursuant to the leave granted by the Tribunal on 9 December 2011. It is to be noted that amendments to the first charge are deletions to conduct and particulars that the Board was no longer pursuing.

    The Tribunal’s Report and Finding was published on 3 April 2012.

    GMM40 is the Tribunal record for the 2008 action and the 2009 action. Of note, Mr Viscariello was represented throughout the Tribunal proceedings by senior practitioners and senior counsel all experienced in disciplinary proceedings.

15. Following this identification of the key events and documents, the Judge drew her ultimate conclusion as to whether the appellant’s case had a reasonable basis, commencing at paragraph [87] of the judgment. The Judge found that the charges were laid in accordance with the Legal Practitioners Act 1981 and the Tribunal’s Rules, and were served personally on him.[49]

    [49] Ibid at [88] (Bampton J).

16. At paragraphs [87] to [96] her Honour concluded that there was no basis for the judicial review.[50] Her Honour stated that the Full Court had confirmed the unprofessional conduct and ordered the appellant’s name be removed from the roll, and that notwithstanding the High Court’s refusal of special leave, the appellant was trying to set those decisions aside, many years later. Her Honour observed that the appellant could have raised the arguments he now sought to raise before the Tribunal and the Full Court, and emphasised the statements of the Chief Justice in the appellant’s 2016 action before the Full Court that the 2012 appeal enabled the appellant to advance arguments concerning any alleged error of law. The Judge concluded that there had been “gross delay” in bringing the current action.[51]

    [50]   Viscariello v Legal Practitioners Disciplinary Tribunal & Anor [2019] SASC 98 (Bampton J).

    [51] Ibid at [102] (Bampton J).

1. The orders made were:

   1.The action for judicial review is summarily dismissed pursuant to r 200C of the Supreme Court Civil Rules 2006 (SA).

   2.The second defendant is to have his costs of and incidental to the application on a party-party basis, certified fit for counsel.

   What the decision did

2. It is evident from the orders that the effect of them was to dismiss the appellant’s action for judicial review. However, there is no reference to the rule 242 application in the reasons or the orders. One possible explanation for this is that although the respondent’s application for summary dismissal contains a reference to the rule 242 application, neither party engaged in any depth as to the relationship between the actions or indeed referred to the rule 242 beyond a passing reference. Another possibility is that the Judge was aware that the rule 242 application could only be determined by the Full Court. As there is no reference to the rule 242 application in the decision, these observations are mere speculation.

3. It is sufficient for present purposes to observe that the rule 242 application is legally independent of the judicial review proceedings inasmuch as the appellant could have brought either of the applications as an action in its own right, without the other. It is evident from the appellant’s submissions on the appeal that the rule 242 application was brought to secure an order that the appellant would seek following the grant of relief on the judicial review proceedings. Nevertheless, it is not the case that the rule 242 application was part of, or subordinate to, the judicial review proceedings except because the applicant chose to present them in that manner.

4. For the consideration of the appeal, it is sufficient to identify that the decision appealed against dismissed only the judicial review proceedings in action 681/2018. I find that the rule 242 application has not been disposed of.

   The appeal

5. The appellant filed a Notice of Appeal in respect of the summary dismissal, setting out 29 grounds. The appellant was represented by Senior Counsel. A Second Notice of Appeal added a further ground which was inserted as ‘A’ prior to the 29 grounds. Three grounds were subsequently abandoned,[52] leaving 27 in total. In written submissions on the appeal, the appellant grouped his grounds as follows:

   [52]   Grounds 26, 27 and 29 were not pursued (Written Submissions of the Appellant dated 2 March 2020 at [132]).

   ·Grounds 1-5 relating to the decision insofar as it addressed the First Charge before the Tribunal.

   ·Grounds 6-12 relating to the decision insofar as it addressed the Amended First Charge before the Tribunal.

   ·Grounds 10-12 relating to the decision insofar as it addressed the Second Charge.

   ·Grounds 13-16 relating to the decision insofar as it addressed the Amended Second Charge.

   ·Grounds 17-18 relating to the decision insofar as it addressed the Tribunal’s reliance on a statement of agreed facts.

   ·Grounds 2b and 19 relating to the decision insofar it addressed the Tribunal’s jurisdiction.

   ·Grounds A, 24 and 28 relating to summary dismissal and made findings of delay by the appellant.

   ·Grounds 20, 21 and 25 relating to inadequacy of reasons and failure to exercise the jurisdiction.

   ·Ground 22 relating to the rule 242 application.

6. Within these grounds, the appellant’s challenge to the Judge’s decision in relation to his rule 242 application is expressed as if the application has been dismissed along with the judicial review proceedings. As I have indicated above, that is not borne out by the decision or the orders.

7. The appellant sought orders allowing the appeal and disposing of the proceedings with orders setting aside the Judge’s orders of 7 June 2019 and in their place orders:

   ·That the respondent’s application for summary dismissal be dismissed;

   ·That the appellant be granted an extension of time and permission to bring his proceedings for judicial review;

   ·In the nature of certiorari setting aside the Tribunal’s report dated 3 April 2012;

   ·In the nature of certiorari setting aside the Tribunal’s recommendations and orders of 12 April 2012; and

   ·Pursuant to rule 242, the orders of the Full Court on 21 December 2012 and 21 May 2013 be set aside.

8. The appellant seeks costs of the original proceedings before the Judge and of the appeal.

9. In the alternative, the appellant sought to have the summary dismissal set aside and the judicial review remitted to a different Judge for consideration, with costs.

10. The appellant filed detailed written submissions.[53] The respondent subsequently filed an application to adduce fresh evidence on the appeal, dated 31 March 2020. This unusual step was said by the respondent to be necessary by virtue of two new arguments the appellant proposed to advance on the appeal that had not been put on the application for summary dismissal. These were said to be the arguments that:

    ·the Board was required to have had a particular charge before it in order to make a valid determination to charge; and

    ·the Board’s Director, who had laid the charge, “was not the subject of a valid delegation and could not act regarding the amendment of the first and second charges”.

    [53]   Dated 2 March 2020.

11. The appellant denied that any of the arguments on appeal were new.[54] A review of the submissions and transcript reveals that the first argument, or at least the foundation for it, was laid by the appellant in his written submissions in response to the summary dismissal application.[55] During the hearing of the summary dismissal application, the appellant stated:[56]

    In relation to the first charge where there was a meeting on 13 December 2007 there was no charge at all before the tribunal. They have not produced one.  There is no reference to one.  Para. 4 itself says: 'Authorises the Board's solicitor to retain senior counsel and junior counsel to provide advice, draft and settle charges and to represent the Board before the tribunal.’

    So, on its own minutes they didn't have anything before it. There was nothing for them.  What they should have done at the next meeting on 13 August 2008, that is GMN9, what they should have done was to say 'We now have a properly formulated and particularised charge before us.  We resolve to lay that charge and proceed before the tribunal' but they didn't do that.  All they say is noted deputy director's report.

    [54]   Appellant’s Submissions in Reply dated 6 April 2020 at [8]-[10].

    [55]   Plaintiff‘s Submissions dated 9 August 2018 at [33]-[39] and [52]-[53].

    [56]   Transcript of proceedings on 7 September 2018 in Viscariello v Legal Practitioners Disciplinary Tribunal & Anor (SCCIV-18-691) at pages 13 (lines 29-38) to 14 (lines 1-6).

12. I do not understand the second argument to represent the appellant’s case.  Nevertheless, the appellant did not object to the respondent adducing fresh evidence insofar as it would assist the Court on appeal to proceed to determine the substance of the appellant’s claims. [57]

    [57]   Save for some objected aspects that were later resolved.

13. The unusual circumstances were, therefore, that the parties approached the appeal as if it were a hearing of the appellant’s substantive action.

14. The evidence that the respondent sought to adduce was exhibited to the Fifth Affidavit of Mr May sworn on 23 March 2020 (“the Fifth Affidavit”). The Fifth Affidavit stated that Mr May had considered that the appellant’s argument in his judicial review proceedings was “whether the Board had passed valid resolutions to lay the two Charges against the appellant before the Legal Practitioners Disciplinary Tribunal” but that when he read the appellant’s written submissions on the appeal he determined that “it is now necessary for me to put before this Honourable Court further documentation to explain what was before the Board when it considered this matter on 13 December 2007 and 13 August 2008.”[58]

    [58]   Fifth Affidavit of Mr May dated 23 March 2020 at [13] and [16].

15. The new material, which had not previously been provided to the appellant or the Court below, included:

    ·Two delegations made by the Board to the Director;

    ·Three memoranda of Legal Advice by the Board’s legal officer to the Board (redacted in part); and

    ·Extracts of minutes of certain Board meetings.

16. The Fifth Affidavit of Mr May also referred to memoranda of legal advice from Mr Kane dated 21 September 2007 and 4 December 2007. Those documents were not exhibited to the affidavit because of a claim of legal professional privilege. Similarly, Mr May referred to a draft of the First Charge that was said to have been discussed at the Board’s meeting of 19 June 2008.[59] Mr May deposed that the First Charge was attached to a memorandum (GMM 79) that was provided to the Board on 13 August 2008. The memorandum states that the author, Mr Kolarovich is “pleased to be able to finally provide for Members a copy of the final draft of the charge to be laid before the Tribunal, as settled by Mr Whitington QC of counsel, and our Director”. However, the affidavit states that the charge itself was not exhibited to the affidavit because a claim of legal professional privilege was maintained.

    [59] Ibid at [45].

17. For three reasons, the disposition of this appeal should be achieved by a consideration of the appellant’s substantive arguments in respect of the judicial review proceedings, which will necessarily answer the question of whether the appellant has a reasonable basis for his grounds of judicial review.

18. The first is that the parties largely acquiesced in such an approach in the conduct of the appeal in particular by the respondent applying to place further evidence before the Court. Secondly, whilst there is disagreement between the parties as to whether the arguments put by the appellant in person before the Judge are embryonic versions of the arguments put by Senior Counsel on appeal or in some cases wholly unrelated, the parties put and met the appellant’s substantive arguments and it is now artificial to consider in any great depth whether those arguments, in their earlier presentation, should have been dismissed. Thirdly, the rule 242 application is only able to be determined by this Court constituted by three or more judges. It would unnecessarily fragment the appellant’s case to take an approach that might entail remitting part of the proceedings.

19. In the circumstances, the appropriate approach is to consider the appellant’s primary contention that the Judge erred in concluding that he had no reasonable basis for his action such that it should be summarily dismissed, but by reference to the evidence and submissions as they were put to this Court.

    What is required for summary dismissal?

20. The respondent’s application was brought pursuant to rule 232 which empowers the Court to give summary judgment to a defendant where there is no reasonable basis for the claim against the applicant. An order may dispose of the whole or only part of a claim.  The respondent made alternative applications to strike out the grounds. Rule 200C was enlivened. It provides as follows:

    200C—Summary dismissal

    (1)If within 14 calendar days of service a defendant files an application for summary dismissal under rule 232, or to strike out the action or the statement of grounds under rule 104, 117 or 193, insofar as an order for judicial review is sought, or if the plaintiff applies for permission under rule 200(2), the defendant may but is not required to file a response or responding affidavit until determination of the application.

    (2)If a defendant files an application under subrule (1) or the plaintiff applies for permission under rule 200(2), the Court must dismiss or strike out the action or statement of grounds, as the case may be, insofar as an order for judicial review is sought, unless satisfied that there is a reasonable basis for the claim for an order for judicial review.

    (3)If the Court dismisses or strikes out the action or statement of grounds, the Court may give directions for the further conduct of the action insofar as other forms of relief are claimed.

    (4)If the Court does not dismiss or strike out the action or statement of grounds, the Court will give directions for filing a response and responding affidavit if not already filed and for the further conduct of the action under rule 201.

    (emphasis added)

21. The Court is required to ask itself whether it is satisfied that there was a reasonable basis for the claim for an order for judicial review. In McLeod v Legal Profession Conduct Commissioner,[60] Doyle J considered the relationship between the criterion described in r 200C and the various tests that have been applied in respect of the Court’s power, expressed in statute or by reference to its inherent powers to control proceedings, to summarily dismiss. His Honour said:[61]

    Under r 200C(1) of the Supreme Court Civil Rules 2006 (SA), a defendant to judicial review proceedings is entitled to file an application for summary dismissal under r 232, or to strike out the statement of grounds under rr 104, 117 or 193. Under r 200C(2), if a defendant files such an application, the Court must dismiss or strike out the action or statement of grounds, as the case may be, insofar as an order for judicial review is sought, unless satisfied that there is a reasonable basis for the claim for an order for judicial review.

    The parties have proceeded on the basis that the concluding paragraph of the defendant’s response is to be treated as an application under r 200C(1), and so I too will proceed on that basis.

    The reference to “reasonable basis” in r 200C(2) mirrors the language of r 232 and so is to be informed by the authorities addressing r 232. There is also a close analogy with the authorities addressing applications to strike out claims under rr 104, 117 or 193 on the basis that the pleadings do not disclose a reasonable cause of action.

    The power to dismiss proceedings under r 200C should not be exercised lightly. However, beyond that note of caution, the better view appears to be that the words “no reasonable basis” require no elaboration. It is thus unnecessary to consider or determine whether the claim is hopeless, unarguable, obviously untenable or bound to fail. The only issue is whether there is a reasonable basis for the claim in the sense that there is a reasonable prospect that, if the matter went to trial, it would succeed.

    (footnotes omitted)

    [60] [2016] SASC 151.

    [61] Ibid at [20]-[23].

22. That approach, which I respectfully adopt, was endorsed by Lovell J in Flowers v Legal Profession Conduct Commissioner.[62] More recently, and consistently with this approach, Doyle J said in Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd & Ors:[63]

    By way of summary of the approach articulated in Spencer v Commonwealth, it can be said that the power to determine a claim summarily should not be exercised lightly. Exercise of the power requires a practical assessment of whether the applicant has real, as opposed to merely fanciful, prospects of success. While the Court need not be satisfied that the claim is hopeless or bound to fail, nevertheless it must be cautious not to do a party injustice by summarily determining an action, particularly where there are disputed issues of fact or law or mixed fact and law, merely because the Court considers that the claim is unlikely to succeed. However, beyond these very general guidelines, the Court should focus upon the words used in the rules and avoid applying any judicial gloss.

    Related to the requirement that the Court undertake a “practical” assessment is the notion that the Court should not embark upon a ‘mini trial’ of the claim. Rather, the claim should be assessed in a summary manner, while being cognisant of the incomplete nature of the evidence upon which the Court’s decision must be based. Adversarial argument may assist, and indeed may result in the emergence of a sufficiently clear answer to a complex issue that summary judgment is appropriate. On the other hand, the need for prolonged argument may be indicative of a reasonable basis for the claim.

    (footnotes omitted)

    [62] [2017] SASC 62.

    [63]   Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd& Ors [2020] SASC 161 at [59]-[60].

23. The onus of establishing that summary dismissal should be granted lies with the party making the application. It is therefore incumbent on that party to understand exactly what is being put against him or her. The Fifth Affidavit concedes that responding to the appellant’s claim “was not an easy task, as it was difficult to clearly understand some of the points being advanced”.[64] 

    [64]   Fifth Affidavit of Mr May dated 23 March 2020 at [9] and [10].

    Was there a reasonable basis for the grounds in the application for judicial review?

24. The appellant’s grounds 1-19 inclusive amount to a complaint that the Judge erred in concluding that there was no reasonable basis for the appellant’s grounds. It is convenient to consider the appellant’s arguments in this regard first.

    The legal framework for the bringing of the charges

25. Section 74(1) of the Legal Practitioners Act 1981 conferred on the Board as one of its functions, “following an investigation, to take action authorised under Subdivision 3 or to lay charges before the Tribunal.” Section 82(1) provided:

    A charge may be laid under this section alleging unprofessional or unsatisfactory conduct –

    (a)     on the part of any legal practitioner; or

    (b)on the part of any former legal practitioner who was at the time of the alleged unprofessional conduct or unsatisfactory conduct a legal practitioner.

26. A charge may be laid by a number of persons or bodies, one of which is the Board. A charge, by whomsoever laid, is required to be in the form prescribed by the rules.

27. The functions of the Tribunal were to:

    ·inquire into the conduct of the legal practitioner or former legal practitioner where a charge had been laid against the practitioner under s 82;[65]

    ·make a finding of whether the practitioner was guilty of the unprofessional or unsatisfactory conduct as outlined in the charge;[66] and

    ·make orders imposing sanctions upon the practitioner or suspending their practising certificate when they were found guilty of unprofessional or unsatisfactory conduct.[67]

    [65]   Legal Practitioners Act 1981 (SA) s 82(4).

    [66] Ibid at s 82(6)(a).

    [67] Ibid at s 82(6).

28. The Tribunal’s powers on a proceeding included, upon the making of a finding of unprofessional or unsatisfactory conduct, making a recommendation that disciplinary proceedings be brought in the Supreme Court.[68]

    The parties’ submissions as to whether the first charge was invalid because the Board did not determine to lay it

    [68] Ibid at s 82(6)(a)(v).

29. The appellant contends that the first charge was not validly laid by the Board in the Tribunal because the instrument that was filed was not the product of a determination of the Board as required by the Act.[69]

    [69]   The appellant made oral submissions regarding this argument before Bampton J. See, Transcript of proceedings on 7 September 2018 in Viscariello v Legal Practitioners Disciplinary Tribunal & Anor (SCCIV-18-691) at pages 10-12; Transcript of proceedings on 9 August 2018 in Viscariello v Legal Practitioners Disciplinary Tribunal & Anor (SCCIV-18-691) at pages 59-62.

30. The appellant’s case was that the Board’s decision to lay charges was required to be undertaken by reference to the precise allegations constituting the charge. The appellant submitted that, “A charge, the essential allegations and particulars of it and its characterisation must be set out in a form in which it is to be laid before the tribunal”.[70] Support for that was said to be garnered from the requirement, in s 82(3), that a charge laid was required to be in the form prescribed by the rules, which in turn provided for a form that directed the inclusion of particulars of the alleged conduct.

    [70]   Transcript of appeal hearing on 8 April 2020 in Viscariello v Legal Practitioners Disciplinary Tribunal & Anor (SCCIV-18-691) at page 15 (lines 28-31).

1. The parties’ approach on appeal was that it was unclear as to whether the Judge had dismissed both of the appellant’s applications or only the judicial review application.[170] However, as stated earlier, the rule 242 application was not dismissed expressly by the Judge and therefore remains undetermined.

   [170] Ibid at [41].

2. Having decided that the appellant’s application for judicial review fails because the claims made by the appellant as to defects in the Board’s and Tribunal’s processes are not made out in fact or law, it is inevitable that his rule 242 application cannot succeed either, as both actions depend upon allegations of procedural irregularity that have not been established.

3. Given that the prerequisites for an application to re-open are different, though, than those for judicial review, completeness is reached by a brief consideration of the applicant’s rule 242 arguments. 

4. Rule 242 provides as follows:

   242—Power to correct, vary or set aside judgment

   (1)     The Court may correct an error in a judgment at any time.

   (2)     If satisfied that the justice of a case so requires, the Court may—

   (a) vary a judgment; or

   (b) set aside a judgment and reopen an action.

   Example—

   The Court might set aside a judgment and reopen an action if satisfied that the judgment is vitiated by a mistake.

   (3)     The Court may act under this rule on its own initiative or on application by a party.

   (4) If the Court proposes to act under this rule on its own initiative, it must notify the parties and allow them an opportunity to make representations on the proposed course of action.

5. The circumstances in which rule 242 will properly be invoked fall into two classes; those arising where the judgment has not been perfected and those in which it has. The appellant accepts that the Full Court’s orders of December 2012 and May 2013 in respect of his appeal from the Tribunal and the disciplinary proceedings were perfected orders.[171] The circumstances in which a re-opening of perfected orders will be undertaken are limited.[172]

   [171] Written Submissions of the Appellant dated 2 March 2020 at [13].

   [172]   See Viscariello v Tamasauskas (No 3) [2019] SASC 79 at [17]-[26].

6. An application brought under rule 242 in respect of perfected orders may be brought as an action in its own right.[173] It must be brought to the same Court as made the impugned decision, though not necessarily constituted by the same judicial officer.[174] Where, as in this case, the decision to be re-opened was one of the Full Court, the application may only be determined by the Full Court and may require a five-judge coram.[175]

   [173]   See, McDonald v State of South Australia [2018] SASC 41 (Vanstone J) referring to Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed) (2018) 264 CLR 165 at [32] (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ).

   [174] Ibid.

   [175]   Glenmont Investments Pty Ltd v O’Loughlin (No 6) [2001] SASC 287 at [17] (Doyle CJ, Nyland and Martin JJ).

   The parties’ positions regarding the rule 242 application

7. The parties were granted permission to make further written submissions regarding the principles underpinning the disposition of the rule 242 application.[176] The appellant submitted that if the Tribunal lacked jurisdiction when it made the recommendations for disciplinary action in the Supreme Court, there would be a strong basis to set aside the Full Court’s orders. The appellant referred to examples provided by the respondent including Cameron v Cole[177] in which the Court said:[178]

   There are two well-established rules. First, a court which, after a real trial, has given a valid decision determinative of right, liability or status, has no jurisdiction to recall it whatever mistakes may have been made in facts or law (In re St Nazaire Co; Hessian v Jones; Re VMG Holdings Ltd; Blyth v Blyth). Second, if in the course of a purported trial, a fundamental irregularity has occurred, which prevents it from being a trial at all, the decision of the court is either void or voidable. It is settled by the highest authority that the decision of a superior court, even if in excess of jurisdiction, is at the worst voidable, and it is valid unless and until it is set aside (Baron Martin advising the House of Lords in Scott v Bennett; Revell v Blake (where Blackburn J draws the distinction between a superior and an inferior court in this respect). I am unable to feel any doubt that the Federal Court of Bankruptcy is a superior court. The language of Lord Greene MR, in Craig v Kanssen, where he says that “a person who is affected by an order can properly be described as a nullity is entitled ex debito justitiae to have it set aside,” is correct as an abstract proposition; but since the order before his Lordship was one of a superior Court, the expression is somewhat misleading, and his statement that the distinction is “between proceedings or orders which are nullities and those in respect of which there has been nothing worse than an irregularity” fails, I venture to think with all submission, to meet the actual facts of the case. This is true enough in the case of an inferior court (In re the affairs of Hart); but in the case of a superior court the distinction is between irregularities so fundamental as to create an unconditional right, ex debito justitiae, to have the judgement set aside and non-fundamental irregularities as to which the court has a discretion.

   (footnotes omitted)

   [176]   Further Written Submissions of the Appellant dated 22 April 2020.

   [177] (1944) 68 CLR 571.

   [178] Ibid at 590 (Rich J).

8. The appellant submitted that the irregularities in the Board’s processes were such as to confer on him the right to have the judgment set aside. He submitted that a lack of jurisdiction in the Full Court to have made its orders is a “quintessential case where ‘the justice of the case’ requires the setting aside of orders.”[179]

   [179]   Further Written Submissions of the Appellant dated 22 April 2020.

9. The respondent submitted that the rule 242 application should be rejected for the same reasons as the grounds for judicial review should be rejected; that there had been no irregularity in the bringing of the charges and therefore no basis to impugn the Tribunal’s jurisdiction to make the orders and recommendations upon which the Tribunal authorised the laying of charges in the Supreme Court that led, ultimately, to the appellant being removed from the roll of practitioners.

   Analysis

10. Consistent with the reasoning of this decision, the appellant has not established irregularities in the Board’s processes. There is no basis for the grant of his application made pursuant to rule 242. However, even if the appellant were to have established that there had been an irregularity, for the following reasons, I would nevertheless reject the application to re-open because the new evidence was not sought by him or withheld from him, and was present and available to be obtained at any time. I would decline to exercise the Court’s discretion to permit the appellant to re-open the perfected orders of 2012 pursuant to the principle of finality.

11. The power to set aside an order is not an inherent power; it exists by virtue of the Court’s control of its own procedure.[180] It operates to govern the exceptions to the principle of finality that operates upon an appellate process.  The appellant submitted that a rule 242 application is an action to which no time limit applies. This correctly observes that the very nature of the action is that it may be reactive to some discovery of error or wrongdoing on the part of the other party.  The task for the Court on such an application is to weigh and balance the principle of finality and a prima facie consideration of the substantive issues.

    [180]   Bailey v Marinoff (1971) 125 CLR 529 (‘Bailey’).

12. As to how that balance is achieved in respect of re-opening perfected orders, the Full Court said in Players Pty Ltd (In Liquidation) (Receivers and Managers Appointed) v Clone Pty Ltd:[181]

    Both rules [rule 242 and its predecessor, 87R 84.12] are in aid of the inherent jurisdiction of the Court to control its processes. It is to be accepted that there is a strong public interest in the finality of judgments once entered. However, this interest sits alongside other interests, namely that of a just result to litigation. It is our view that the Court retains a discretion in its inherent jurisdiction to control its own processes and provide an appropriate remedy when justice requires. … Rule 242 should be read liberally. The Court’s discretion is only fettered by the words “if satisfied that the justice of the case so requires”.

    [181] (2013) 115 SASR 547 at [69] (Gray, Blue and Stanley JJ).

13. With respect to the proper use of the power to re-open a perfected judgment, Doyle CJ (with whom Bleby and Martin JJ agreed) said in McAdam v Robertson:[182]

    The power is to be exercised with great caution. The reasons for that are obvious. There is a strong public interest in the finality of litigation. Once a stage in the process of litigation has been completed, ordinarily it should not be revisited. Our system of adversary litigation, with the obligation that it imposes upon the parties to present their whole case and to present their best case, would begin to collapse if courts too readily entertained applications to reopen decisions given after a full hearing. The power can be exercised if some important principle of law has been overlooked, or if there is an apparent misapprehension as to a significant fact, but this is to be distinguished from enabling a party to attempt to persuade a court that it should change its view of a matter that it has considered and decided.

    As the High Court said in Smith (at 265) the power is discretionary. It is not a power that lends itself to detailed categorisation, but nor is the discretion an ample one. Indeed, it is fairly closely confined.

    [182] [1999] SASC 169 at [38]-[40] (Doyle CJ, with Bleby and Martin JJ agreeing). These observation were made by the Full Court in respect of the common law power to re-open a perfected judgment.

14. As such, it has been acknowledged that it is to be used “guardedly”[183] and that the power must be exercised with great caution "after weighing what might otherwise be irremediable injustice against the public interest in maintaining the finality of litigation"[184] or “sparingly”.[185]  Finality of litigation is a fundamental principle.[186] A forensic decision not to pursue a particular argument would not usually entitle that party to a right to set aside, revoke or vary a decision following an appeal on the basis of that decision.[187] An application to re-open is not to be used for the purpose of enabling a party to argue a further ground of appeal following an unsuccessful appeal on other grounds.[188]

    [183]   Gamser v Nominal Defendant (1977) 136 CLR 145, 147 (Gibbs J not following his own dissent in Bailey v Marinoff (1971) 125 CLR 529 and instead adopting Bailey).

    [184]   University of Wollongong & Ors v Metwally (No 2) (1985) 59 ALJR 481, 483 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ).

    [185]   Copping & Ors v ANZ McCaughan Ltd & Ors (1997) 67 SASR 525, 569 (Lander J).

    [186]   Wentworth v Woollahra Municipal Council (1982) 149 CLR 672; State Rail Authority (NSW) v Codelfa Construction Pty Ltd (1982) 150 CLR 29.

    [187]   Copping & Ors v ANZ McCaughan Ltd & Ors (1997) 67 SASR 525, 569 (Lander J).

    [188]   It is not possible to apply to re-open a judgment for the purpose of arguing a ground of appeal. There is no jurisdiction for this Court to allow a judgment to be "re-opened" for the purpose of a party arguing a further ground of appeal. If there is any jurisdiction at all, it is that this Court would have jurisdiction only to revoke, set aside or vary a judgment or order of the first Full Court.

15. When the appellant’s rule 242 application is considered against this background, his arguments with regard to a fundamental irregularity arose in such a way that the principle of finality would nevertheless override the case for re-opening the Full Court’s proceeding in actions SCCIV-12-597 and SCCIV-12-607.  This is because, firstly, the evidence he sought was available to (though not taken by) him earlier in the history of the matter and, secondly, the substantive findings of misconduct remain undisturbed by the arguments that the appellant seeks to put. Indeed, those findings about the appellant’s conduct have been subsequently revisited and affirmed.

16. As to the first point, it is necessary to canvas the appellant’s opportunities to challenge the Board’s actions and the Tribunal’s orders on the basis that he now seeks, and the choices he made. The appellant made a forensic decision at the time of challenging the Board’s actions and subsequently the orders against him, not to seek to unearth each aspect of the procedure to check for regularity.  He did not take the steps on which he subsequently took and now relies upon, until many years later. This is not a case of a person who was not aware of the effect of the decision upon him or whose mind was not directed to the rectitude of the decision. The appellant’s mind was acutely focused on the Board’s actions; he was the person directly affected by them.  He actively engaged in challenging the processes in a particular way. He was represented by counsel and he was a legal practitioner at the time.

17. There were then subsequent opportunities for the appellant to seek out the evidence and to put arguments regarding procedural irregularity. Those were arguments appropriate for the appellant’s first appeal. There is a strong case against him being permitted to put arguments that could have been put on the first appeal.[189]

    [189]   University of Wollongong & Ors v Metwally (No 2) (1985) 59 ALJR 481, 483 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ).

18. The appellant did not seek out the evidence upon which he now seeks to rely before making an application, dated 23 January 2013, to re-open the appeal. That application was refused on 12 April 2013.[190]

    [190]   Viscariello v Legal Practitioners Conduct Board (No 2) [2013] SASCFC 27.

19. On 21 May 2013, the Full Court finalised the disciplinary proceedings by directing that the appellant’s name be struck off the roll of practitioners.[191] On 3 December 2013, the High Court refused the appellant special leave to appeal the refusal to re-open the Full Court appeal and the decision by which his name was removed from the roll of practitioners.[192]

    [191]   Legal Practitioners Conduct Board v Viscariello [2013] SASCFC 37.

    [192]   Viscariello v Legal Practitioners Conduct Board [2013] HCASL 188 (Bell and Gageler JJ).

20. The appellant did not seek out the evidence upon which he now relies until he commenced judicial review proceedings against the Legal Practitioners Disciplinary Tribunal, about six months after his High Court applications for special leave were refused, in May 2014.[193] The grounds, in summary, were that the Tribunal’s erroneous findings in relation to two sworn affidavits, the Board adopting the findings of Debelle J without conducting an investigation when it determined to lay a charge, and particular procedural decisions made by the Tribunal, all amounted to jurisdictional error.[194]

    [193]   Viscariello v Legal Practitioners Disciplinary Tribunal [2015] SASC 116.

    [194] Ibid at [25]-[39] (Parker J).

21. The 2014 judicial review proceedings, brought on different grounds than those now agitated, commenced with an application for permission and extension of time. The appellant also brought his second application under rule 242 and that was deferred pending consideration of the permission application on the judicial review.[195] Parker J refused permission to proceed with the judicial review in August 2014. His Honour rejected the application for an extension of time and found that the judicial review proceedings had no reasonable prospects of success. His Honour found that the discretion in respect of a grant of relief on judicial review would have been exercised against him because:

    ·The appellant could have but did not put the arguments he sought to put on review, in the appeal.[196]

    ·It would be contrary to the principle of finality in litigation to allow those arguments to be advanced by way of judicial review against that history.[197]

    ·The Full Court’s orders would not be disturbed by a successful judicial review and accordingly, the proceedings were futile.[198]

    [195] Ibid at [9] (Parker J).

    [196] Ibid at [70] (Parker J).

    [197] Ibid at [61] (Parker J).

    [198] Ibid at [67] (Parker J).

22. The appellant’s appeal against the decision of Parker J was consolidated with the appellant’s rule 242 application, which remained undetermined, and the matters were heard together. In dismissing the appeal for the same reasons that permission had been refused by Parker J, the Full Court said:[199]

    A judgment should not be impugned in the special supervisory jurisdiction of the Supreme Court when there is a more complete right of appeal against the judgment and for that reason the orders sought would be refused.

    [199]   Viscariello v Legal Practitioners Disciplinary Tribunal; Viscariello v Legal Profession Conduct Commissioner [2016] SASCFC 107.

23. In the appellant’s earlier appeal and application pursuant to rule 242, when considering the factors relevant to the grant of an extension of time on a judicial review and the principle of finality, Kourakis CJ identified that the nature of the right of appeal may be a significant determinant of whether the principle of finality should operate against an application to re-open. In rejecting the appellant’s arguments that his judicial review advanced points that were not within the scope of his right of appeal from the Tribunal’s orders, Kourakis CJ said:[200]

    It is plain on the very words of s 86(1) of the LPA, which confer a right of appeal against a purported exercise of power by the Tribunal, that on an appeal brought pursuant to that section the Supreme Court is empowered to grant relief for jurisdictional errors. Moreover, it is well-established by authority that an appeal brought pursuant to s 86 of the LPA is an appeal by way of rehearing.

    [200] Ibid at [60].

24. The Chief Justice continued:[201]

    On an appeal by way of rehearing an appellant can impugn the subject determination on the ground of an error of law of any kind. All jurisdictional errors are errors of law.

    [201] Ibid at [63].

25. What was made clear to the appellant at that stage is that the principle of finality gathered strength following his failure to succeed on his original appeal against the Tribunal’s orders, at which time he could have brought any argument concerning a mistake of law or fact and made allegations of jurisdictional error.

26. This is the appellant’s third application to challenge the orders made by the Court to remove his name from the roll since his unsuccessful appeal. The appellant’s arguments on the rule 242 application that is now before the Court refers to evidence that was in existence throughout, neither given to, withheld from, or sought by, the appellant until late 2017. The Full Court’s observations about the appellant’s missed opportunities are now only amplified.

27. The second basis for concluding that finality should prevail in this matter is that the substantive findings of the Tribunal are not factually undermined by any of the arguments that the appellant now seeks to raise.  In fact, those factual findings of unprofessional conduct have been affirmed by the Full Court.

28. In Viscariello v Legal Practitioners Conduct Board[202] the Court said,[203]

    … having regard to the Tribunal’s findings and following our review of the underlying evidence, that Mr Viscariello engaged in unprofessional conduct as charged in counts 1 and 2.

    [202] [2012] SASCFC 147.

    [203] Ibid at [180] (Gray, Sulan and Blue JJ).

29. Subsequently, in the hearing of the appeal against Parker J’s refusal to extend time for the appellant to bring an application for judicial review, the Chief Justice said:[204]

    The appellant submits that the Full Court did not in fact reach an independent decision and that if he demonstrates that the Tribunal made a jurisdictional error, the order of the Full Court removing his name from the Roll of Practitioners ought to be set aside.

    As has been seen, the Full Court appeal was heard together with the disciplinary proceedings. The Full Court findings were therefore made both in the Full Court appeal from the Tribunal’s decision and in its disciplinary jurisdiction, whether the inherent jurisdiction or pursuant to s 89(5) of the LPA.

    [204]   Viscariello v Legal Practitioners Disciplinary Tribunal; Viscariello v Legal Profession Conduct Commissioner [2016] SASCFC 107 at [69].

1. The appellant has not overturned those findings.

2. The appellant has challenged the Board’s and Tribunal’s processes by way of appeal in the nature of a re-hearing, and by way of judicial review. Those challenges and the appeals from them have provided this Court with the opportunity to consider the process and the outcomes of the Board’s and Tribunal’s actions and consider whether there has been jurisdictional error or errors in factual findings or other errors of law.  In such circumstances, the principle of finality prevails as there are no procedural nor substantive grounds upon which the appellant can succeed and the application to reopen must be refused.

3. Ground 22 of the appellant’s grounds of appeal fails.

   Inherent jurisdiction exercised?

4. The appellant maintains his “innocence of the two Charges”.[205] The respondent relied also upon the Full Court having reached, in its decision of Viscariello v Legal Practitioners Conduct Board [2012] SASCFC 147, conclusions as to the nature and character of the appellant’s actions that were the subject of the charges.

   [205] First Affidavit of Mr Viscariello dated 19 June 2018 at [70].

5. With reference to that decision, Kourakis CJ said:[206]

   The Full Court made its own findings before imposing a sanction pursuant to s 89(2) of the LPA. It is immaterial whether the Full Court dismissed the appeal and then accepted and acted on the Tribunal’s finding pursuant to s 89(5) of the LPA, or, made its own findings on the face of the transcript as evidence it received in the disciplinary proceedings. On either view, the decision of the Supreme Court on the Full Court appeal and in the disciplinary proceedings was made independently of the Tribunal’s determination.

   [206]   Viscariello v Legal Practitioners Disciplinary Tribunal; Viscariello v Legal Profession Conduct Commissioner [2016] SASCFC 107 at [77].

6. The respondent submitted that these conclusions created an impenetrable barrier to the appellant’s success because they were reached independently of the Tribunal’s conclusions. As to this, the appellant submitted that the Court was not exercising inherent jurisdiction and that the exercise of its statutory jurisdiction required the charges to be validly laid to make its orders.

7. In light of the earlier findings, it is not necessary to decide the point. However, the fact that the Full Court undertook the exercise necessary for it to form the views that it did, leaves no room for doubt that the appellant’s conduct has been amply and repeatedly assessed as amounting to unprofessional conduct, the nature of which led the Full Court to determine that removal of his name from the roll of practitioners was warranted. When added to the conclusion that the alleged process irregularities were not defects at all, the inescapable conclusion is that both the substance and the process enlivened the Court’s power to make the orders for striking off that it did. The appellant says that in respect of the arguments he sought to put before the Judge, the fact that there have been several confirmations of the appellant’s unprofessional conduct are ‘not to the point’. However, they are to the point insofar as there is any element of discretion to be exercised in the grant of the orders he seeks. The statutory construction point as to the meaning of ‘charge’ having been determined against him, much if not all of the remaining dispute turns upon whether the appellant ought to be given a further chance to re-run his case. The confirmations of the appellant’s unprofessional conduct are, in this regard, quite to the point.

   Grounds 20, 21 and 25 – inadequacy of reasons[207]

   [207]   See, Written Submissions of the Appellant dated 2 March 2020 at [128]-[130].

8. In light of the manner in which the appeal was run, and the fact that these reasons address and reject the appellant’s substantive arguments, there is no need to consider the allegation of inadequate reasons.

   Conclusion

9. The appeal against the summary dismissal of the judicial review proceedings is allowed in part. The application for judicial review is dismissed. The appellant’s application pursuant to rule 242 of the Supreme Court Civil Rules 2006 to re-open the proceedings SCCIV-12-597 and SCCIV-12-607 is refused.

   Orders

   1.Appeal allowed in part.

   2.The Legal Profession Conduct Commissioner be permitted to adduce the evidence contained in the fifth affidavit of the Commissioner filed 23 March 2020, pursuant to rule 286(3)(a) of the Supreme Court Civil Rules 2006.

   3.The orders in proceedings SCCIV-18-691 are set aside.

   4.The application for judicial review in proceedings SCCIV-18-691 is dismissed.

   5.The application for relief pursuant to Rule 242 in proceedings SCCIV-18-691 is dismissed.

   6.The parties will be heard on the question of costs.

   TILMOUTH AJ:

10. I concur in the orders proposed by Hughes J. I add the following brief observations in support of her Honour’s conclusions.

11. To construe the Legal Practitioners Act 1981 (SA) so as to conclude that the First Charge, the Amended First Charge and the Amended Second Charge were invalid in the way contended by the Appellant would render the administration of that Act and the procedures for disciplinary action thereunder too inefficient and cumbersome for effective and expeditious resolution of charges in the manner expected of Administrative Tribunals.

12. The Tribunal granted leave for the First Charge to be amended, narrowing the scope of the particulars favourably to the Appellant. The Second Charge was amended by way of unopposed leave and proceeded with an Agreed Statement of Facts accepting the conduct in respect of it was properly characterised as a lesser charge of unsatisfactory conduct. The critical fact that the charges proceeded before the Tribunal by way of consent amendments leads to the inevitable conclusion that the Appellant effectively waived any right to later object to the charges.[208] As Brennan, Deane and Gaudron JJ observed:[209]

    It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.

    [208] Vakauta v Kelly (1989) 167 CLR 568.

    [209] Ibid 572.

13. As to the extension of time in which to bring the application for judicial review, there is perhaps some force in the point that the single judge under appeal failed to first consider granting the requisite permission to proceed as required by rr 200(2)–(4) of the Supreme Court Civil Rules 2006 (SA). This was however, of no consequence as the application was bound to fail for the reasons articulated by Hughes J.

14. I further concur in the conclusion that the power to exercise the Court’s discretion to permit re-opening perfected orders in the circumstances of this case infringes the cardinal principle of finality by which parties are bound by their conduct.[210]

    [210] Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd (No 2) (2013) 87 ALJR 1159 at [26]; Patel v The Queen (2012) 247 CLR 531 at [114].

15. Still further, this Court found the appellant engaged in unprofessional conduct as charged, in Viscariello v Legal Practitioners Conduct Board.[211] Then, in Viscariello v Legal Practitioners Conduct Board (No 2),[212] this Court (differently constituted) dismissed the Appellant’s application to re-open the appeal on the basis of alleged material errors of fact. Next, in Viscariello v Legal Practitioners Disciplinary Tribunal; Viscariello v Legal Profession Conduct Commissioner,[213] this Court (differently constituted) yet again dismissed his appeal and refused an application under r 242 of the Supreme Court Civil Rules 2006, on the basis that the errors complained could have been agitated in the original Full Court appeal[214] and that any proceedings for judicial review of the Tribunal’s orders were futile, as the orders of the Full Court remained valid and binding.[215]

    [211] [2012] SASCFC 147 at [180].

    [212] [2013] SASCFC 27 at [46].

    [213] [2016] SASCFC 107.

    [214] Viscariello v Legal Practitioners Disciplinary Tribunal; Viscariello v Legal Profession Conduct Commissioner [2016] SASCFC 107 at [65].

    [215] Ibid at [79]-[80].

16. In light of the extensive litigation history in this matter, to allow reopening now by way of appeal or judicial review only further serves to undermine the public interest in the finality of litigation and jeopardises public confidence in the administration of justice because of the potential for ‘the scandal of conflicting decisions’ made by the same court.[216] The existence of such decisions is, in the words of Mason CJ in Rogers v The Queen,[217] ‘… calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issue’.

    [216] Spencer Bower and Turner, The Doctrine of Res Judicata (Butterworths, 2^nd Ed, 1969) 411, cited by Deane and Gaudron JJ in Rogers v The Queen (1994) 181 CLR 251, 273.

    [217] (1994) 181 CLR 251, 257.