Viscariello v The Legal Practitioners Disciplinary Tribunal (No 2)

The parties in this matter were the appellant, Viscariello, and the respondent, The Legal Practitioners Disciplinary Tribunal. The dispute concerned the costs of proceedings before the Supreme Court of South Australia, specifically in relation to an appeal and substantive proceedings that had been heard by the Full Court. The Court was comprised of Lovell and Hughes JJ, and Tilmouth AJ.

The central legal issue before the Court was how to exercise its broad discretion under section 40 of the Supreme Court Act 1935 (SA) to award costs in circumstances of "mixed success". This involved determining the appropriate apportionment of costs between the parties, given that the appellant had achieved a partial success in that the Court found summary judgment had been granted prematurely, but had otherwise wholly rejected the appellant's substantive claims. The Court was required to consider principles relating to costs following the event, the court's discretion to depart from this general rule, and how to assess costs in situations where a party has succeeded on some issues but failed on others.

The Court reasoned that while costs generally follow the event, its discretion under section 40 was wide and could be exercised on any appropriate basis. Applying principles from cases such as Lesses v Maras (No 3) and Ruddock v Vadarlis (No 2), the Court acknowledged that mixed success warranted a departure from the usual order. Despite the respondent being the primary successful party, the Court recognised the appellant's partial success in the appeal concerning the premature grant of summary judgment. Consequently, the Court exercised its discretion to make a "broad axe" assessment of costs, reflecting the mixed outcome.

The Court ordered that the appellant pay 75% of the respondent's costs of and incidental to the two actions, and that the respondent pay the appellant 25% of the appellant's costs of and incidental to those actions. These costs were to be agreed or taxed.