Viscariello v The Legal Practitioners Disciplinary Tribunal

Case [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…

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Viscariello v The Legal Practitioners Disciplinary Tribunal [2021] SASCFC 18
Case
[2021] SASCFC 18
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the appellant, Mr Viscariello, against the summary dismissal of his application for judicial review. The appellant also sought to have the Court determine his application for judicial review and an application under rule 242 of the Supreme Court Civil Rules 2006 to re-open and set aside orders made by the Full Court in 2012 and 2013, which had resulted in his name being removed from the roll of legal practitioners. The appeal was heard by Lovell and Hughes JJ and Tilmouth AJ.

The central legal issues before the Court were whether the Legal Practitioners Conduct Board had validly laid disciplinary charges against the appellant, whether the Tribunal had complied with its rules in relation to the laying of those charges, and whether the appellant had waived any right to object to the charges by consenting to proceed on agreed facts and a lesser charge of unsatisfactory conduct. The Court also considered the commencement of the time limit for judicial review applications and whether the appellant had established sufficient grounds to warrant re-opening the Full Court's previous decisions under rule 242, particularly in light of significant delay and the public interest in the finality of litigation.

The Court, in allowing the appeal in part and dismissing the judicial review application, held that the Board was not required to have the final version of a charge before resolving to lay it, and that the Tribunal's rules regarding the laying of charges had been complied with. It was further determined that compliance with those specific rules was not essential for a valid charge, and that amending the particulars of a charge did not necessitate a fresh determination by the Board. The Court found that the second charge was validly laid and that the Tribunal was empowered to proceed on agreed facts, leading to findings of unsatisfactory conduct. Regarding judicial review, the Court ruled that the time for bringing such an application commences upon the making of the impugned decision, not upon the discovery of an error. Furthermore, the appellant's delay was considered so significant that it fell within a rare category where an extension of time should be refused irrespective of the merits of his arguments. Tilmouth AJ added that the appellant's conduct in not opposing amendments and proceeding by way of agreed facts constituted a waiver of any right to object, and that reopening the matter would undermine the public interest in finality.

Consequently, the appeal against the summary dismissal of the judicial review application was allowed, and the judicial review application itself was dismissed. The appellant's rule 242 application to re-open the Full Court's previous decisions was also dismissed, as the Court found that the justice of the case did not require the proceedings to be reopened, particularly given the appellant's conduct and the extensive litigation history.

Orders

Orders of the court

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).

Background

Background to the litigation

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 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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. 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 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.

Ratio Decidendi

Legal Principle Established

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