Viscariello v The Legal Practitioners Disciplinary Tribunal (No 2) - [2021] SASCFC 29

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
VISCARIELLO v THE LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL & ANOR (No 2)
[2021] SASCFC 29
Judgment of The Full Court
(The Honourable Justice Lovell, the Honourable Justice Hughes and the Honourable Auxiliary Justice Tilmouth)
25 June 2021

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT - PARTIAL SUCCESS
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - COSTS
On 12 March 2021, the Court allowed the appellant’s appeal in part, dismissed his judicial review proceeding and dismissed his rule 242 application. The appellant argued that the respondent should pay him the costs of and incidental to the original proceedings and part of the costs on appeal in the proportion of 50-70%. The respondent argued that costs should awarded to him for the original proceedings and the appeal on the standard costs basis with a minor reduction if the Court were to characterise the appeal as being partially successful.
Held, per the Court:
1. that the appellant pay the respondent 75% of the respondent’s costs of and incidental to action SCCIV-18-691 and action SCAPP-18-100691 to be agreed or taxed; and
2. that the respondent pay the appellant 25% of the appellant’s costs of and incidental to action SCCIV-18-691 and action SCAPP-18-100691 to be agreed or taxed.
Supreme Court Act 1935 (SA) s 40; Supreme Court Civil Rules 2006 (SA) r 263, r 264, r 286; Uniform Civil Rules 2020 (SA) r 1.4, referred to.
Copping & Ors v ANZ McCaughan Ltd & Ors [1995] SASC 4917; (1995) 63 SASR 523; Lesses v Maras (No 3) [2017] SASCFC 154, applied.
Cheshire & Anor v Jennings & Anor (No 3) [2021] SASCFC 21; Holt v Bunney [2020] SASCFC 120, discussed.
Viscariello v Macks (No 2) [2018] SASCFC 106, considered.

VISCARIELLO v THE LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL & ANOR (No 2)
[2021] SASCFC 29

Full Court: Lovell & Hughes JJ and Tilmouth AJ

THE COURT: The Court delivered its decision in this matter on 12 March 2021. It was an appeal against a decision by the Primary Judge to summarily dismiss an application for judicial review in proceedings SCCIV-18-691. The defendants to the original proceedings were the Legal Practitioners Disciplinary Tribunal, which took no active role before the Primary Judge or the Court, and the Legal Profession Conduct Commissioner (hereafter “the respondent”). The Primary Judge awarded the respondent his costs of and incidental to the application on a party-party basis[1] and that order was set aside on appeal.
[1] Sealed order dated 7 June and 19 June 2019.
To establish that the Primary Judge was wrong to have summarily dismissed his application for judicial review, the appellant set out his arguments in some detail, both in written submissions and in oral argument. The appellant was unrepresented before the Primary Judge but represented by senior counsel on the appeal. Having received the appellant’s written submissions, the respondent applied for and was granted permission to adduce fresh evidence which it considered further established its case that the judicial review was destined to fail. That course of action had the effect that the task before the Court was not strictly a consideration of whether there had been an error by the Primary Judge. The arguments and material before the Court were different from that which the Primary Judge had heard and received.
The Court’s orders allowed the appeal in part so as to set aside the Primary Judge’s decision to summarily dismiss the application and enable the fresh evidence to be adduced. The Court then determined the judicial review proceedings and dismissed them. The Court further heard and dismissed the remaining component of the appellant’s proceedings which was an application for a grant of relief under rule 242 of the Supreme Court Civil Rules 2006 (SA) to set aside an earlier decision of the Full Court.
The appellant filed written submission on costs on 29 March 2021 and the respondent filed its submission on costs on 9 April 2021, in accordance with leave granted on 12 March 2021.
The power of the Full Court to award costs derives from s 40 of the Supreme Court Act 1935 (SA) which confers an unfettered discretion that must be exercised judicially.
The question for determination now is what order or orders are appropriate in respect of the proceedings before the Primary Judge and before the Full Court reflecting the orders and decision delivered to the parties on 12 March 2021.
A preliminary question arises as to whether the Uniform Civil Rules 2020 (SA) (“UCR”) or the Supreme Court Civil Rules 2006 (SA) (“SCR”) govern the application. The UCR came into operation on 18 May 2020. The whole of the proceedings before the Primary Judge and most of the proceedings before this Court occurred prior to that date. Four events relating to the proceedings have occurred since that date. They are: the portion of the hearing that occurred on 22 May 2020 after the proceedings were called back on to address a question of the further evidence that was sought to be admitted; the delivery of the decision on 12 March 2021; the making of written costs submissions by the parties; and (yet to occur), the delivery of this costs decision.
Rule 1.4(1) of the UCR provides that the UCR apply to “a step in a proceeding taken on or after the commencement date”, namely 18 May 2020. The decisions of Cheshire & Anor v Jennings & Anor (No 3)[2] and Holt v Bunney[3] have touched on what constitutes a step in a proceeding but there has been no comprehensive discussion of the provision. That can occur on another day. It is sufficient to say that none of the four events described above constitute steps in the proceeding that would have any material effect on the costs orders. All of the relevant steps occurred prior to the commencement of the UCR and by virtue of rule 1.4(1), are not governed by the UCR. It is therefore appropriate to determine the parties’ entitlement to costs by reference to the SCR. This is not inconsistent with the parties’ approach.
[2] [2021] SASCFC 21 at [12]-[17] (Peek, Doyle and Livesey JJ).
[3] [2020] SASCFC 120 at [6]-[7] (Nicholson J).
The appellant’s arguments
The appellant submitted that the Court should order that the respondent pay the appellant’s costs of the original proceedings and costs of part of the proceedings before this Court. In relation to the original proceedings, the appellant submitted that by virtue of this Court’s finding on appeal that the respondent had misapprehended the appellant’s argument, leading to a premature application for summary dismissal, the respondent became liable for his costs of those proceedings. Further, the fact that the Court on appeal was able to determine the judicial review proceedings on the material before it indicated that there was a significant overlap in the determination of the summary dismissal application and the judicial review proceedings substantively.
The appellant further submitted that the determination of the rule 242 application required consideration of issues that overlapped substantially with those relating to the judicial review proceedings.
The appellant submitted that the respondent should pay his costs of and incidental to the summary judgment application before the Primary Judge on a party/party basis, and pay the appellant’s costs of and incidental to the appeal on a party/party basis in the proportion of 50-70%.
The appellant disavowed an approach whereby the costs of the aspects of the matter are ascribed on a more precise basis by reference to the relative success of the parties on individual components of the proceedings on the basis that to do so would be to invite a more costly and cumbersome process of taxation.
The respondent’s arguments
The respondent’s position was that costs should follow the event and that this would have the effect that the respondent be awarded its costs of and incidental to the appeal and the proceedings before the Primary Judge on the standard cost basis and certified fit for counsel.
The respondent placed significant emphasis upon the appellant’s failure to adequately articulate his rule 242 application before the Primary Judge. This, it was argued, led to the Primary Judge failing to address the application but on appeal it was dealt with and dismissed. It followed that the respondent was as successful as could be expected on the rule 242 component of the proceedings.
In relation to the application for summary dismissal, the respondent submitted that it was correctly decided by the Primary Judge and reviewed on appeal and the outcome was upheld. This had the effect of creating an entitlement in the respondent of an award of costs in respect of the proceedings before both the Primary Judge and the Full Court.
The respondent further argued that the Full Court upheld the dismissal of the judicial review proceedings and this gave rise to an entitlement to the respondent to be awarded his costs before the Primary Judge and before the Full Court.
The respondent submitted that if the Court were inclined to characterise the appellant’s proceedings before the Full Court as partially successful, this should be recognised to the extent of a minor (5%) reduction in the award to the respondent. In the event of any award of costs in favour of the appellant, the respondent sought to off-set that award for any liability that the respondent has for costs (in other proceedings) to the appellant.
Consideration
Section 40 of the Supreme Court Act 1935 (SA) provides that the costs of and incidental to all proceedings in the court shall be in the discretion of the court. As a general rule, costs follow the event, but the Court may award costs on any basis that it considers appropriate: SCR 263 and 264.
Section 40 confers a wide discretion on the court in the making of an award of costs. It includes the making of an award in respect of a trial proceeding where no such order has yet been made.[4] There was no suggestion that the matter should be remitted for that purpose; both parties advanced their submissions on the basis that this Court would determine the parties’ costs in respect of the proceedings before the Primary Judge and the Full Court.
[4] Viscariello v Macks (No 2) [2018] SASCFC 106 at [14] (Lovell J, Corboy AJ and Slattery AJ)
Rule 286 in the SCR provides:
286—Hearing of appeal
(1)    An appeal is to be by way of rehearing (unless the law under which the appeal is brought provides to the contrary).
(2)    Subject to any limitation on its powers arising apart from these Rules, the Court may determine an appeal as the justice of the case requires despite the failure of parties to the appeal to raise relevant grounds of appeal, or to state grounds of appeal appropriately, in the notice of appeal.
(3)    Subject to any limitation on its powers arising apart from these Rules, the Court may—
(a)    draw inferences of fact from evidence taken at the original hearing and, in its discretion, hear further evidence on a question of fact;
(b)    amend or set aside the judgment subject to the appeal and give any judgment that the justice of the case requires;
(c)    remit the case or part of the case for rehearing or reconsideration;
(d)    make orders for the costs of the appeal.
The broad discretion must be exercised judicially: Copping & Ors v ANZ McCaughan Ltd & Ors.[5] Because of the unusual manner in which the appeal proceeded, in the sense that the Court determined that the application for summary judgment had been granted prematurely but proceeded to hear the appellant’s substantive proceedings and wholly rejected them, the issue of costs falls to be determine as a matter of “mixed success”, though in circumstances in which the success primarily flowed to the respondent.
[5] [1995] SASC 4917; (1995) 63 SASR 523, 527 (King CJ, with Mohr and Nyland JJ agreeing).
In Lesses v Maras (No 3),[6] consideration was given to awards in mixed success matters. The Court (Blue, Parker and Hinton JJ) said:[7]
[6] [2017] SASCFC 154.
[7] Ibid at [82]-[85].
When there has been mixed success at first instance or on appeal, a court may in appropriate circumstances reduce the costs ordered in favour of the overall successful party, and further may order that party to pay the opponent’s costs, in respect of such issues. When the court considers that the discretion should be so exercised, it will usually make an order for payment of a proportion of one party’s costs by the other party reflecting a broad axe assessment, even when it considers that the successful party should pay the opponent’s costs in respect of such issues.
In Ruddock v Vadarlis (No 2), Black CJ and French J said:
Within the general discretion of the courts to award costs it is accepted by decisions in both Australian and English jurisdictions that:
·       Ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order.
·       Where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed.
·       A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other parties' costs of them. In this sense “issue” does not mean a precise issue in the technical pleading sense but any disputed question of fact or law.
Without limiting the factors relevant to exercise of the discretion, it is more likely to be exercised to make a costs order reflecting mixed success:
·the more separate and distinct the issue on which the successful party failed (a separateness assessment);
·the greater the relative value and importance of the issue on which the successful party failed (a value assessment);
·the greater the proportion of costs of the issue on which the successful party failed (a relativity assessment);
·the greater the amount of costs of the issue on which the successful party failed (an absolute assessment);
·the less the merit of the successful party’s case on the unsuccessful issue (a merit assessment).
In general terms, appellate courts tend to exercise the discretion to make a costs order reflecting mixed success on appeal less frequently than the discretion is exercised (either at first instance or on appeal) in respect of the costs of action in the court below. This reflects the fact that appeal costs are usually much smaller than first instance costs and the issues are usually fewer and more refined. Nevertheless, appellate courts do exercise discretion to make cost orders reflecting mixed success on appeal when appropriate.
(footnotes omitted)
In these proceedings, the issues were limited in number. The issues were: the merits of the respondent’s application for summary dismissal, the merits of the judicial review proceedings and the merits of the rule 242 application.
The success of the parties was not distributed across those issues in a particularly complex manner. The appellant was successful in establishing that the summary dismissal was premature on the evidence and argument that had been advanced in relation to it. The respondent was successful in establishing that, on all of the evidence, the judicial review proceedings and the rule 242 application should each be dismissed as lacking in merit.
However, there is reason to adopt a broad approach to the order in respect of costs. Whilst the respondent was found to be premature in his application for summary dismissal, it was also the case that the appellant’s case in judicial review was obscure before the Primary Judge and when it was fully ventilated before the Full Court, it was wholly rejected. However, it was only able to be fully ventilated after the respondent adduced evidence relevant to the appellant’s judicial review for the first time before the Full Court. That evidence was significant to both the appellant’s claim and the respondent’s defence and it was within the respondent’s ability to have discovered that evidence at an earlier stage. Thus in relation to the judicial review, the manner in which the proceedings were conducted contributed to the inability of the Primary Judge to get to the heart of the issues. It was only before the Full Court that the arguments and evidence were properly aired.
Contrary to the appellant’s submissions, the rule 242 application was a quite separate application to the judicial review proceeding, and though it sprang from the same factual basis it required consideration of different principles. It was incapable of being dealt with by the Primary Judge because of the requirement that it be determined by an equivalent member bench to that which had decided the proceedings that the appellant sought to have set aside.
For these reasons, an approach that does not seek to apportion costs by reference to the parties’ success on particular issues is appropriate. Rather, taking the above matters into consideration, an award of costs in the proportions of 75% in favour of the respondent and 25% in favour of the appellant reflects the outcome in the two sets of proceedings and is the appropriate order to make.
This approach reflects that the summary dismissal application was premature and the appellant was put to some unnecessary expense defending it and bringing the appeal. However, when his judicial review proceedings were thoroughly aired, they were found to lack merit. Further, the appellant did not and could not have his rule 242 application dealt with by the Primary Judge because it could only be determined by a Court constituted of three or more judges. When that aspect of his proceedings was considered by this Court, it was comprehensively rejected. The 75/25 division of costs reflects in broad terms the respective success of the parties and their unnecessary expenses.
We would decline to grant the respondent’s request to offset the costs to which the appellant is entitled against orders that have been made against him in other, related proceedings in favour of the Commissioner. To do so would unduly complicate outcomes in the event of a successful appeal in respect of this or any other matter to which the Commissioner was intending such an order might be applied.
In our view, the appropriate orders are as follows:
1.that the appellant pay the respondent 75% of the respondent’s costs of and incidental to action SCCIV-18-691 and action SCAPP-18-100691 to be agreed or taxed; and
2.that the respondent pay the appellant 25% of the appellant’s costs of and incidental to action SCCIV-18-691 and action SCAPP-18-100691 to be agreed or taxed.