Viscariello v Legal Practitioners Conduct Board [2013] HCATrans 149 (17 June 2013)

Last Updated: 19 June 2013

[2013] HCATrans 149

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A19 of 2013

B e t w e e n -

JOHN VISCARIELLO

Applicant

and

LEGAL PRACTITIONERS CONDUCT BOARD

Respondent

Application for stay

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON MONDAY, 17 JUNE 2013, AT 3.15 PM

Copyright in the High Court of Australia

MR B.R.S. KENDALL, QC: If the Court pleases, I appear with my learned friend, MR P.T. VOUT, for the applicant. There are in fact two matters - this one and matter No A16/2013 and they are related matters. (instructed by Holding Redlich)

HIS HONOUR: Yes.

MR KENDALL: The application No A16, being the first in time - - -

MR R.J. WHITINGTON, QC: I appear with my learned friend, MS G.C. WALKER, for the respondent in each matter. (instructed by Legal Practitioners Conduct Board)

HIS HONOUR: Yes, thank you. Counsel should be aware of the fact that I have tried to familiarise myself with the content of both of the files, A16 and A19, and I am therefore, I hope, reasonably familiar with the nature of the application and the circumstances in which it arises. The immediate application I think, Mr Kendall, is in A19 by summons 11 June, is it?

MR KENDALL: That is correct, yes.

HIS HONOUR: Supported by the affidavit of the applicant which you rely on.

MR KENDALL: Yes.

HIS HONOUR: I assume there is no objection to the reception of that, Mr Whitington?

MR WHITINGTON: No objection, your Honour.

HIS HONOUR: Yes. That may be taken as read. The stay that you seek is, as I understand it, a stay pending hearing and determination of the first application and any consequent appeal. Is that right?

MR KENDALL: That is correct.

HIS HONOUR: Yes.

MR KENDALL: I will begin by going to the affidavit of Mr Viscariello. I will not read it, of course, but can we refer to what we say are the critical matters? As your Honour appreciates, he has been struck off the role and there has been an interim stay granted by the Full Court of South Australia of 28 days. The prejudice which Mr Viscariello would suffer is outlined in paragraphs 6 through to 13, or really 14. In essence it is this. He has practised as a partner in a firm of solicitors in Adelaide. He has substantial financial commitments to that firm. He does not have other employment to which he could readily go, and finally, he is engaged in very substantial litigation against a liquidator, and that is referred to in paragraph 13.3, in which part of the relief sought is an inquiry pursuant to section 536 of the Corporations Act, an inquiry into the conduct of a liquidator. It is a very substantial case. It has been heard at trial. Decision in that matter is reserved by the Chief Justice of South Australia.

So that, in our submission, there is very substantial detriment which would arise to Mr Viscariello if he was required to cease practising altogether pending the hearing of the application for special leave to appeal in the first matter. There was a prior occasion, going back to June 2002, when Justice Blue of the Supreme Court made certain interim orders permitting him to practice law upon certain conditions.

HIS HONOUR: I have seen those.

MR KENDALL: Those conditions are summarised but not set out in full in paragraph 15, though they are set out in his Honour’s order, and what Mr Viscariello says in paragraph 17 of his affidavit is that he is willing to comply with similar conditions to those imposed by Justice Blue, and with any such other conditions as may be imposed by this Court. The critical matter for him is that if he is required to cease practice he will very quickly have no income. It is said against us that, well, he is qualified in other fields, which undoubtedly he is, and he can simply go out and find another occupation.

HIS HONOUR: Let it be assumed for the purposes of debate that refusal of a stay would firstly work very great personal hardship to him, and secondly, would adversely diminish the fruits of success in any application for leave and consequent appeal. Let those two facts be assumed for the purposes of debate.

MR KENDALL: Yes.

HIS HONOUR: A question, I think, would be what prospect of success has the first application? Is that right?

MR KENDALL: Yes.

HIS HONOUR: Do I understand the first application, firstly it relates to the refusal to reopen?

MR KENDALL: Yes.

HIS HONOUR: Second, the foundation for the reopening application and in consequence the foundation for the application for leave is, I try to find terms that are neutral, the treatment given to two affidavits sworn by Ms Hamilton-Smith.

MR KENDALL: That is correct.

HIS HONOUR: In particular, whether those two affidavits should have been taken into account as supporting the account of events that Mr Viscariello gave in particular about whether the company concerned was acting on its own behalf or acting as trustee. Is that right?

MR KENDALL: Yes.

HIS HONOUR: Would I be correct to understand that as lying at the very heart of the application?

MR KENDALL: Two things lie at the heart of the application. That is the first one. The second one to which it is allied is the nature of the inquiry undertaken by the Tribunal and what it is required by section 82 of the Act to do.

HIS HONOUR: Yes.

MR KENDALL: We submit that the Tribunal is not simply a tribunal before which an adversarial proceeding is conducted, but rather it has a duty to inquire. Part of our submission in that regard is that once, as it happened, the Tribunal became seized of the existence of these two affidavits and knew what was in them, however unsatisfactory as to form it may be said that they are, that once it knew of the facts there being asserted, it should before it proceeded to make, in effect, a finding that Mr Viscariello had committed perjury, it should have had regard to the contents of those affidavits and should have investigated the circumstances surrounding them.

HIS HONOUR: What then is one to make of the fact that application was made to take evidence by video link from Ms Hamilton-Smith from Hong Kong but that application was opposed by Mr Viscariello?

MR KENDALL: The application was opposed as to the taking of evidence by video link, not the taking of evidence itself, and notwithstanding that it was so opposed, it was a matter for the Tribunal to determine how it should proceed to investigate that. That occurred - - -

HIS HONOUR: Its writ would not run beyond South Australia or the Service and Execution of Process Act territories, would it?

MR KENDALL: It would be very difficult to use that process to force her to come back, but this matter, with respect, was never really clarified before the Tribunal in the end. As your Honour may have appreciated, there was a suggestion at one stage that a further charge would be laid, and we will come to that presently, and for that reason an adjournment of the proceeding which had sort of limped along over a significant period of time, many months, an adjournment was given so that the Board could decide what it wanted to do.

In the end, the Board came back and there was a mention, which is not in the ordinary sequence of transcripts, but there was a mention one morning in July of 2011 to the effect that the Board would proceed with the matter as it was. So that to lay against Mr Viscariello simply that he had expressed a concern against having her evidence heard by video does not really truly answer the point. The fact is that the Tribunal - - -

HIS HONOUR: What, despite his opposition, the Tribunal should have inquired, and now he complains that the evidence was not taken into account? Is that not the fundamental tension that this application faces, Mr Kendall?

MR KENDALL: Well, it is a tension but it is not a fundamental one.

HIS HONOUR: Beware the intensifying epithet every time, Mr Kendall, should I not? But what do you say I do with this apparent tension, conundrum, I do not care what term we use, but what do I do about this?

MR KENDALL: It ought to have been resolved by the Tribunal and it was not. The Tribunal, once the evidence was before it, even if there had been difficulties in obtaining the attendance of Ms Hamilton-Smith, and even if Mr Viscariello as he did opposed having her give evidence by video link, the fact is that there was evidence which was capable of corroboration and the fact is that the first – there were two affidavits tendered and they are in similar terms, one an affidavit filed in the District Court, and that one was tendered by the Board without limitation, without any restriction at all. No discussion of the basis, it was simply put in. The same goes for the Supreme Court affidavit which was tendered by Mr Viscariello and, again, without limitation or objection, no qualification whatsoever. Now, once the affidavits are in they stand as evidence and they ought to have been considered.

HIS HONOUR: I think that that is a proposition you may need to develop a little. It is not immediately apparent to me that in a disciplinary hearing of this kind that the production and tender of material in evidence in the court in which it is said misconduct has occurred becomes evidence of the truth of the contents of the affidavit on the issue of perjury, but perhaps you could develop that a little.

MR KENDALL: Below, that is before Justice Debelle, if critical paragraphs of the affidavit had not been struck out in error then that affidavit would have been admissible, it was not hearsay at that point.

HIS HONOUR: Even though she did not respond to notice to attend? The Full Court records in one of its judgments - and this may be a matter that I may misunderstand - I understood the Full Court to record that in the proceedings before Justice Debelle, notice to attend was given to Ms Hamilton-Smith and she did not attend for cross-examination on her affidavit in the proceeding before Justice Debelle. Now, what consequence that would have under the Rules of South Australia, I do not know, and I should not assume that it is the same consequence it would have had under the Victorian Rules, with which I was once familiar.

MR KENDALL: Yes, and with which your Honour remains familiar. The answer is this. The evidence was she was in Melbourne at the time and was not available on the day in question, but to such a critical matter where a judge is going to proceed to find that a witness has lied to him – it is a little complicated here because in fact he has struck out the relevant paragraphs on the basis that she was not a director and that turns out to be wrong.

HIS HONOUR: Yes.

MR KENDALL: But in theory at least, knowing that that evidence was available, he should at least have waited to see whether or not her return from Melbourne could be procured. After all, she was living in Adelaide at that time.

HIS HONOUR: Why should the judge have waited when this was an affidavit tendered by Mr Viscariello on his side of the record? It is for him, surely, to get his house in order evidentially?

MR KENDALL: Well, I am actually not sure what formal notice requiring Ms Hamilton-Smith to attend was given, your Honour.

HIS HONOUR: In the end that may be a complete side wind. I simply noted that she had not attended – assume that we can park that offstage left as an issue that either need not or at least cannot be sufficiently explored. What am I to make of the fact that in the Tribunal Mr Viscariello gave evidence, did he not?

MR KENDALL: Yes, and was cross-examined - - -

HIS HONOUR: Was not believed on his oath?

MR KENDALL: Was not believed.

HIS HONOUR: Am I right to understand the course of events that neither in the Tribunal nor in what might loosely be termed the first round in the Full Court was it submitted that Ms Hamilton-Smith’s affidavits bore upon the issue of his belief – bore upon the issue of his credibility in his evidence?

MR KENDALL: There was not extensive oral submissions directed to that point.

HIS HONOUR: Any?

MR KENDALL: To the point of her evidence corroborating Mr Viscariello’s, no; that is the correct situation. The point is that it was raised in ground 1.3 of the notice of appeal and the Full Court engaged the issue because at paragraph 152 of his first reasons the Full Court said:

Mr Viscariello complained that the Tribunal wrongly rejected the force of the evidence comprised by Ms Hamilton-Smith’s affidavit -

It then proceeded through to paragraph 155 to deal with that affidavit and, in our submission, sought in its reasons to exclude the affidavit, and in doing so it accepted that – or appeared to accept that it contained evidence because at paragraph 154, halfway down, it observed:

The Tribunal did not say that it rejected the statement in Ms Hamilton-Smith’s affidavit because she was interstate or overseas on the date on which it was sworn. That would have been an irrational basis on which to reject such evidence and there is no reason to attribute such reasoning to the Tribunal.

So the Full Court at that point – that is 152 and 154 read together – was treating the affidavit as being capable of constituting evidence before the Tribunal. Then at 155 it went on to say:

More importantly, it was obvious that Ms Hamilton-Smith could not have had personal knowledge –

and so on. That is in part the reason why we are here, because there is the error as to when she was a director. She was a director at the relevant time, and she was a director in particular at the time when the application for development approval was made and when the application came before the Environment Court. So that a mistake was made, but those paragraphs, 152 through to 155, perhaps combined with 145 where a like point is made, namely, at 145, five lines down:

Mr Viscariello, and not Ms Hamilton-Smith, was a director of J & L Developments at the time . . . only he could give admissible evidence concerning the company’s conduct -

That passage of about five lines – factually wrong - subsequently, in the second reasons, acknowledged by the Full Court to be in error. So that first time round the Full Court, as it were, removes the evidence of the Hamilton-Smith affidavits as a factor to be considered by saying that she was not a director and thus the evidence is hearsay.

Second time round, in the second reasons upon the application to reopen, a different approach is adopted and it is to be found first at paragraph 32 of the second reasons – I am sorry, at 32 they observe that there has to be a significant or material error. Then at 35 it is observed:

It was accepted that, in general terms, the Tribunal was involved in an investigation. However, it was pointed out that the proceeding before the Tribunal was conducted as an adversary proceeding. Both the Board and Mr Viscariello were represented by senior counsel. The proceeding before the Tribunal was treated as being comparable to the hearing of a complaint and conducted on the basis that the Board carried a high onus –

and so on. Paragraph 36:

The suggestion that the Tribunal was under a duty to give the affidavits of Ms Hamilton-Smith testimonial effect because in part it was undertaking an investigative role is rejected -

Incidentally, no reasons are given –

The position is that neither party sought that the affidavits be given any testimonial effect. They were before the Tribunal only as evidence of a historical event.

Now, we, in fact, dispute that for two reasons. First, we say what appears in those passages – that is from 35 and 36 – does not have proper regard to the function of the Tribunal and it is not merely an adversarial inquiry, and there is a case, Trueman’s Case, in the Full Court of South Australia to that effect; we will come to that presently.

So that what is embarked upon is something much more than an ordinary civil procedure and therefore to dismiss the evidence merely as evidence of an historical event, even if that be true – which we say it was not – is incorrect in the event. So what the Full Court proceeded to do in the second reasons was to find new reasons, different from those articulated in its first judgment, as a basis for avoiding the evidence in the affidavits.

Now, in our submission – and this goes to the core of our case – once that affidavit material was before the Tribunal, once it was seized of the fact that another party was saying that the applications at the relevant time were made by the company in its own right, that was a matter which had to be investigated, and that is especially so because, as the Tribunal recognised in its reasons, it was never said in the original development application that the company was applying for development approval in its capacity as trustee. I can take your Honour to the passage.

HIS HONOUR: I assume that to be so. It would surprise me if a trust company had deposed to acting as trustee in a development application, but perhaps not.

MR KENDALL: Now, can I just come back to one point which seemed to be troubling your Honour, and that is the alleged objection taken by Mr Viscariello to the use of a video link? Although that was foreshadowed in discussions – and I think it arose at the mention to which I have referred and I have the transcript of that mention here – but there was never a formal application made to the Tribunal to actually call Ms Hamilton-Smith, and one is left with the situation where, for whatever reasons, the Board had itself tendered one of the affidavits.

Now, your Honour, we have, in fact, filed a further affidavit today just for formal reasons, sworn by Mr Viscariello, which exhibits certain documents, including some excerpts from the transcript. The fourth exhibit to that transcript includes the transcript of the proceedings which occurred on 7 July 2011 which was effectively a mention of the matter. I do not know whether your Honour has that.

HIS HONOUR: Yes, I do. I should have adverted to that. Mr Whitington, is there any objection to the reception of this affidavit?

MR WHITINGTON: There is not, but your Honour will appreciate that I think we received it – we do not have a sealed copy and we only received a version a while ago; we have not had an opportunity to give it detailed consideration, and your Honour might bear that in mind, if your Honour pleases.

HIS HONOUR: Yes. What page am I going to, Mr Kendall?

MR KENDALL: Working from the back of a fairly voluminous affidavit, it is about six pages in, your Honour. It is a page where someone has numbered 82 at the bottom in handwriting.

HIS HONOUR: Yes, I have that.

MR KENDALL: Now, this is the mention hearing which took place in July. First, at the top of that page, which is page 2 of the transcript, Mr Whitington says:

Perhaps I should go first and report to the tribunal. I told the tribunal on the last occasion that the board was considering whether to lay a further charge or charges arising out of new matters which had come to their attention.

The matter from the board’s point of view has proved complicated, and I don’t want to say too much –

The Board needs to consider the matter further. Then he said -

Now, I think from everybody’s point of view the delay is becoming unsatisfactory. What I am going to suggest is propose that we proceed with the matter as it is, in the expectation it will remain as it is.

HIS HONOUR: Then we see what he says at lines 22 through to 35 about the attendance of Ms Hamilton-Smith.

MR KENDALL: Yes, whether or not they want to call Ms Hamilton-Smith and they are going to give some advice to the Board about it. Then they mention proceeding to another matter, namely, access to certain files; that is not immediately relevant.

HIS HONOUR: Can I put the matter as tendentiously as I may so that you may respond to it, recognising the tendentious formulation of it - that you would have the Tribunal and the Full Court act on the untested affidavit about a legal conclusion in circumstances where your client did not at least co-operate with the Tribunal’s wish to have her heard by video link. Now, that I think is about as tendentious as I could make it, and I suspect it is what Mr Whitington may later say. Now is a good opportunity then to come to grips with it and grapple with it and tell me why it is wrong.

MR KENDALL: No to two propositions in what your Honour just said. Not to have it accepted but to have it tested and to see whether or not it would have been possible in the end to get Ms Hamilton-Smith to attend, because all of that is left up in the air. Secondly, to see whether, if formal application was made, there would have been opposition from Mr Viscariello – and assume that there would have been because in circumstances such as this evidence by video link about such a critical matter can be – well, it is not the most satisfactory way to have evidence tested, particularly where what is happening is the Board is seeking to achieve a determination that a practitioner has committed perjury.

Now, that stage, whether or not there was a formal application, never actually occurred, and we do not know why it was not investigated. But as I said before, defective in form though the affidavit may be, it was a matter which ought to have been considered because of the seriousness of the charge and the determination which was made.

HIS HONOUR: Yes.

MR KENDALL: Now, what has happened here in the result is that a person has been found liable – I use the word “liable” deliberately, but liable for perjury in circumstances where there was evidence which may have supported his position before Justice Debelle, which we say did corroborate his evidence before Justice Debelle, and which the Tribunal did not regard for its testimonial effect. So much appears in paragraph 21 of the Full Court’s second reasons. The Full Court at paragraph 21 says:

Both [affidavits] were tendered as a matter of history.

In our respectful submission, that may or may not have been so but, as I have already said, the Full Court engaged the issue. So the Full Court in its first reasons no doubt regarded the existence of the affidavit as a significant factor, otherwise it would not have passed upon it. In our respectful submission, once one gets to the point where it is acknowledged by the Full Court in its second reasons that an error was made, then the affidavit ought to have been considered for its testimonial effect, and that did not occur.

Now, the matter is made more complicated by the fact that the Tribunal in its reasons referred to the affidavits in passing but did not make any comment about them. There is no analysis of the contents of the affidavits at all, it simply recites their existence, and it is paragraphs 53 and 54 of the Tribunal’s reasons, but it does not pass upon them in terms of analysing them for their effect. One therefore does not know what was passing in the Tribunal’s mind at the time when it referred to those affidavits.

Now, it is especially important in view of what had occurred in the hearing because in November 2010 a very profound matter arose when an announcement was made by counsel for the Board to the effect that the Board had been informed by Ms Hamilton-Smith that she had not signed the affidavits, and I wish to take your Honour just to a series of about five pages concerning this because we are concerned that that is a matter which may have affected the Board’s thinking, even though no charge was subsequently laid about it.

HIS HONOUR: Why do I get into any of that?

MR KENDALL: Because it is a matter which we say might explain why the Board did not pass upon the affidavits in its reasons.

HIS HONOUR: Assume for the purposes of debate that that were an available point of view. Why would that bear upon any issue before me as to whether or not you would get special leave to appeal against the refusal to reopen?

MR KENDALL: The refusal to reopen was based on a determination by the Full Court that the affidavits were in for historical reasons only and not for any testimonial effect. We say that that is wrong.

HIS HONOUR: The fact that counsel for Mr Viscariello did not either before the Tribunal or the first round of the Full Court suggest that these affidavits were there as corroborating evidence of his account would rather suggest that, would it not?

MR KENDALL: Well, your Honour, true it is that that submission was not made by counsel. However, the affidavits before the Tribunal which has an obligation to inquire - now, we do not put it so far as to say the Tribunal has to go out and get evidence, but once a matter is before it, those affidavits were corroborative of Mr Viscariello’s evidence on their face, all of this in circumstances where he has been charged before the Tribunal, in effect, with perjury. There are comments in this Court to the effect that a proceeding like this before a disciplinary tribunal that the process is not unlike a finding of perjury in the criminal sense and that, I think, is Smith’s Case from memory.

HIS HONOUR: I am generally familiar with the proposition, yes.

MR KENDALL: Yes. Now, so that however it got before the Tribunal, we say the Tribunal had a duty to investigate. Can we refer your Honour briefly to what was said by the Full Court in Trueman’s Case. I do not know whether your Honour has seen that decision.

HIS HONOUR: I thought I had, Mr Kendall.

MR KENDALL: It is in the applicant’s folder of authorities.

HIS HONOUR: Well, now you speak lovingly of a folder of authorities that I do not have.

MR KENDALL: To save time, may I hand up an unsatisfactory copy and, your Honour, may I say that it has been marked by me – I now have a clean copy.

HIS HONOUR: I do not think I will be inflamed by your markings, Mr Kendall.

MR KENDALL: Thank you, your Honour. Legal Practitioners Complaints Committee v Trueman, it is a decision of the Full Court of South Australia given on 4 December 1996 - turning to page 8 of the extract, which has come from Butterworths, page 8 of the photocopy but page 14 of the decision.

HIS HONOUR: Yes, I have that.

MR KENDALL: So, halfway down page 8, the paragraph beginning “In the end result”.

HIS HONOUR: Yes.

MR KENDALL: We would respectfully ask your Honour to read from there to the bottom of the page. Then to page 16 which is on the page numbered 9 before your Honour and at the bottom about 10 lines from the bottom where it is said:

The proceedings therefore, in my opinion, are an admixture of adversarial proceedings and inquisitorial proceedings. There are good reasons for that.

His Honour outlines three reasons why that is so to the end of the page. Now, to like effect were statements made by Justice Cox and Justice Perry who in substance agree, but at page 11 of the document, Justice Cox observed that the Tribunal had misunderstood the Act that:

The Tribunal, having regard to the evidence before it, should have required the respondent to attend and answer questions.

Can I say, of course, that this is a case where the shoe was on the other foot, so to speak. Justice Perry was even more definite where he said:

the Tribunal’s function is not to be circumscribed by reference to the manner in which the parties choose to place their respective cases before it.

It is true that the dictates of procedural fairness oblige the Tribunal to confine its inquiry into such conduct of the legal practitioner as is relevant to a determination of the charge –

and so on. In our submission, the approach taken by the Full Court in its second reading is completely at variance with what is said by the Full Court, another differently constituted Full Court, in December 1996; two inconsistent positions. It cannot be that the statutory – it is an obvious point, I am sorry, but the statute says that the Tribunal is charged with the task of making an inquiry and the determination of the Tribunal is called a report with findings.

Now, we perceive some matters which might be put against us, namely that there were two matters running concurrently, as it were, but they were part of one charge before the Tribunal. Now, to make this absolutely plain, there were in fact two charges before the Tribunal. The second charge concerned a matter concerning the Fencing Act and it was a charge of unsatisfactory conduct. It has no relevance here. The remaining charge, the one which is relevant here – there is one charge with two components to it.

We say that the consideration of whether Mr Viscariello’s evidence should be believed flows into all of those matters because if it be the case that, as Ms Hamilton-Smith said in her affidavits, the application was made by the company in its own right and if Mr Viscariello’s evidence on that point were to be accepted and, of course, that aspect of it has not been tested as against the Ms Hamilton-Smith affidavits, then we submit that that flows through into both elements of the charge. It cannot be said against us that for some reason success on the issue would not lead to a change in the result, because what we seek is that the matter be remitted and re-heard entirely by a differently constituted tribunal.

The way through that, of course, is to take the step that the Full Court ought to have reopened. Central to that is simply this, that the new reasons which the Full Court finds for avoiding the consequences of the Hamilton-Smith affidavit for the purposes of its reasons are, we say, fallacious and they cannot be sustained.

Can I just refer to one matter which has been brought to my attention? In the course of submissions in the first appeal, Mr Wells, QC who appeared for Mr Viscariello who was the appellant, did say at transcript page 68 – he is speaking of Mr Viscariello’s evidence - it is the last five lines: “He maintains exactly what he would be saying if in fact his advice was as he said it was and indeed that is supported by the fact that Ms Hamilton-Smith, who is the director by then, is the one who gives the very evidence which is exactly in accordance with the advice as well.”

I pause there to explain the advice being referred to. A master of the court made an order that the company swear an affidavit. That affidavit was settled by counsel who advised about its content. They are the two Hamilton-Smith affidavits which were sent to counsel and counsel determined and advised who should swear the affidavit. So, even before the Full Court, Mr Wells is at least referring to the evidence of Mr Viscariello about the advice from counsel as being supported by the fact that Ms Hamilton-Smith is the person who gave the relevant evidence.

Now, your Honour, a number of points are put against us in reply which, for example, are disparaging of Mr Viscariello and saying that there is no hardship which would emanate to him. As we understand your Honour, your Honour is not - - -

HIS HONOUR: For the moment I am prepared to assume that for the purposes of argument that he would suffer hardship and that there would be adverse effects on his enjoying the fruits of any successful application for leave or consequent appeal.

MR KENDALL: Yes. Well then, there is one remaining matter and it concerns what happens before the Tribunal in November when the announcement is made that the Board may wish to procure another charge. This appears in the bundle of - - -

HIS HONOUR: What has this – again, what does this have to do with success in the application A16?

MR KENDALL: Because we sought to show before the Full Court that the Board had sought to investigate other matters surrounding the affidavit and for that purpose there was an affidavit sworn by Mr McNamara in which he deposed in particular to two things.

HIS HONOUR: That he had witnessed the affidavits.

MR KENDALL: Yes, that is the first point.

HIS HONOUR: Yes, and there was no forgery. Yes, I understand that.

MR KENDALL: Yes, and that there had been an inquiry into his conduct by the Board’s own motion.

HIS HONOUR: So what? Is this not offstage left from the matter the subject of immediate debate?

MR KENDALL: No, that is a matter which we submitted before the Full Court should have been investigated. It is a matter of which the Tribunal should have been informed, as it should have been informed also of the fact that there had been obtained two reports from handwriting experts. The second one prepared by a Mr Smith, being in response to a question asked by the Board as to whether the person who signed the two affidavits as to whether it was the same handwriting, that was the question put.

Now, the report was non-committal in that respect. In other words, the expert said that he could not come to any conclusion to the effect that both signatures were in the same handwriting. But the Board had undertaken that inquiry and had made the inquiry of Mr McNamara but still saw fit to put before the Tribunal the following written submission. It is paragraph 31 of a written submission relied upon by the Board as part of its final submissions. Your Honour may not have that. I wonder if I could tender an extract of those submissions.

HIS HONOUR: Well, before you do that, you might be good enough to tell me to what aspect of the application for special leave in A16 this is relevant and where in your applicant’s summary of argument I find reference to it.

MR KENDALL: Yes, if your Honour would pardon me for a moment.

HIS HONOUR: I should say to you I am not conscious of any reference to it, but that may be my mistake.

MR KENDALL: I will do this very quickly, but I think the answer is that we do not.

HIS HONOUR: Why then does it bear upon the chances of your succeeding on the application for special leave in matter A16?

MR KENDALL: Well, we say that it does. In the application itself, we do refer to paragraph 31 of the outline of closing submissions, and this is at page 4, that is the application for special leave. As your Honour has observed, we probably have not addressed this point.

HIS HONOUR: No.

MR KENDALL: It is nevertheless relevant in this way, that a submission was put in final submissions to the Tribunal to the effect that the Tribunal could still find that the affidavits had not been signed by Ms Hamilton-Smith, and there were oral submissions put about it as well. All of that we say coloured the Tribunal’s approach to these two affidavits, and that is why we say well, it is interesting that the Tribunal should have referred to - - -

HIS HONOUR: Coloured in what way, Mr Kendall, because that is a very large proposition that you are advancing: that an allegation made but not found, what?

MR KENDALL: The Tribunal passed over the affidavits without analysing them or giving them any consideration for their effect. We say that there are a number of matters or threads or themes which went through the course of this hearing which would serve to affect the Tribunal’s thinking about the affidavits. Now, it is most unsatisfactory that they have not passed upon them, but at one stage when it was announced to the Tribunal that there was a possibility of preferring further charges on the basis that Ms Hamilton-Smith had said that she had not signed the affidavits, the chairman of the Tribunal said that that was a matter they would not be able to put out of their minds, as it were.

So that we say it explains the failure of the Tribunal to properly consider the evidentiary value of the affidavits. But even if your Honour is against us on that point, the fact remains that the applicant has been found liable for perjury in circumstances where there was evidence that corroborated his evidence on the very point at issue in the case. It has for him a most devastating result if that evidence is not to be taken into account. We submit that, coming back to the essential question which is that the Full Court should have reopened the appeal, we say that the Full Court made a very substantial error when it sought to dismiss that evidence as being only tendered for historical purposes. That is the critical matter and that, of course, relates to the duty of the Tribunal to inquire, pursuant to section 82(4) of the Act.

HIS HONOUR: Yes.

MR KENDALL: I do not propose to repeat or go around the point. They are the square issues that we say merit a grant of special leave. It is a very simple statutory point. It is not unlike the situation which arose in the Datt Case. That is referred to in our authorities. I will not read it but it was a case in which – it is Datt v Law Society of NSW [1981] HCA 44; (1981) 148 CLR 319 – a case in which there was an issue concerning the interpretation to be given of certain statutory powers given to a statutory committee, and although it had been argued before this Court that leave should not be granted, the Court held that, notwithstanding the submission that it was:

not a case for special leave on the ground that disciplinary questions are generally left by this Court to the Supreme Court.

I am quoting from the judgment of Justice Mason. He said in conclusion -

Here however, an important question relating to the jurisdiction and powers of the statutory committee has arisen. For this reason it is a case which calls for the grant of special leave.

Leave was granted and the appeal was allowed, and at least two of the other Judges agreed specifically with Justice Mason. Justice Aickin was one and Chief Justice Gibbs the other. So that, in our submission, there are good prospects of obtaining special leave to appeal.

HIS HONOUR: Thank you, Mr Kendall.

MR KENDALL: If your Honour pleases.

HIS HONOUR: Mr Whitington, if you would be good enough to confine your submissions, at least initially, to the question of the prospects of success of the application for special leave and assume, for the purposes of debate, that all other aspects that may bear upon grant of a stay were to be concluded against you.

MR WHITINGTON: If your Honour pleases. Can I start with the hearing before Justice Debelle? Justice Debelle heard and saw the practitioner give evidence and found that he had lied. The practitioner was not compelled to give evidence before Justice Debelle. Justice Debelle declined to receive certain passages of an affidavit of Ms Hamilton-Smith. The practitioner then chose to give evidence on behalf of the company. He was called by the company’s counsel who said that he had the opportunity to take instructions from the practitioner. The practitioner then gave an account in terms of the Supreme Court affidavit and the District Court affidavit to the effect that the trustee company had been acting in its own right in the development applications.

The first time in the entire development proceedings that that submission surfaced was in the two affidavits filed virtually contemporaneously on the, I think, 3 October 2006 and they were filed after the practitioner himself had filed an earlier affidavit in seeking to oppose the recovery of costs against the trustee company in which he made no mention of this circumstance. They were filed plainly in response to submissions filed on behalf of the successful appellants who had costs orders now against the company asserting that the company’s attempt to avoid costs orders by removing a right of indemnity from the trustee was inefficacious and would not avail a trustee company.

In response to that the affidavits were filed and, as I say, the affidavits for the first time contained the assertion the company had been acting in its own right. Now, before the Tribunal, Mr Viscariello also gave evidence on oath at length. The Tribunal saw him and heard him over an extended period and did not accept his account again, did not accept the plausibility of the account, the trustee had been acting in its own right and therefore considered that he had lied to Justice Debelle and lied to the Tribunal and found that charge proved and, of course, also found proved the other count that the attempt to withdraw the right of indemnity from the trustee to defeat the judgment creditors was unprofessional conduct.

Now, at no time during the Tribunal hearing did Mr Viscariello’s counsel suggest that the affidavits that I have referred to, the critical Hamilton-Smith affidavits, were advanced for testimonial effect. Before the Full Court on the hearing of the appeal, that same counsel who of course does not have the luxury of distancing himself from the Tribunal hearing, conceded to the Full Court that the affidavits were tendered only as part of the history, and your Honour will see that referred to in the reasons of the Full Court on the reopening at paragraphs 14, 21 and 26.

But even more critically the Full Court found, and it does not appear to be disputed, that Ms Hamilton-Smith was not in any position to depose to the critical issue of her own knowledge, that is, that all the evidence before the Tribunal was that Mr Viscariello himself had had charge of both of the development applications – and there were a number because there were many objections - and the court proceedings, and that all of the evidence allowed the conclusion that Ms Hamilton-Smith had no personal knowledge which would have permitted her to depose to the matters and the ultimate conclusion in the affidavit.

It was in that context that it can be said that these affidavits were merely part of the history. The affidavits were the occasion to explain why, or how, the allegation that the company was acting in its own right first surfaced and how it was that Mr Viscariello came to give oral evidence before Justice Debelle and how it was that he gave evidence to the same effect, and in those circumstances the Tribunal was not required to give the affidavits of Ms Hamilton-Smith any testimonial effect. Not only was that not the basis upon which the hearing was conducted, but nor was any submission made on behalf of the practitioner before the Tribunal that those affidavits should be given any testimonial effect. Moreover, there was no - - -

HIS HONOUR: The question before the Tribunal was, was it not, had the practitioner lied to Justice Debelle?

MR WHITINGTON: Correct.

HIS HONOUR: The evidence he gave to Justice Debelle was known from the transcript. Is that right?

MR WHITINGTON: Correct, yes.

HIS HONOUR: In answer to the allegation of lying Mr Viscariello gave evidence to the Tribunal.

MR WHITINGTON: Over many days.

HIS HONOUR: And that evidence was not accepted.

MR WHITINGTON: No, and that was following a submission - - -

HIS HONOUR: Was it open to Mr Viscariello to tender whatever evidence was available to him to support his account of events?

MR WHITINGTON: It was, yes. It was open to him to seek to call Ms Hamilton-Smith, and if he could not achieve that, to explain why. It was open to him to call, for instance, Mr McNamara, who after the Full Court decision on the appeal and on the application to reopen saw fit to file an affidavit dealing with matters that Mr Viscariello could well have put before the Tribunal, because that affidavit of Mr McNamara’s made it plain that he and Mr Viscariello had been discussing the Tribunal proceedings as they developed and yet Mr Viscariello chose not to call his partner.

HIS HONOUR: Again, all of those things, it seems to me, are beside the point. Did the Tribunal make any inference adverse to Mr Viscariello on account of a failure to call Ms Hamilton-Smith?

MR WHITINGTON: No.

HIS HONOUR: Did Mr Viscariello ask the Tribunal to draw any adverse inference on account of the prosecuting authorities not calling Ms Hamilton-Smith?

MR WHITINGTON: No.

HIS HONOUR: Well, then, we have a lot of history, but the Tribunal surely has to act, does it not, according to the evidence available to it, subject to this point which is made that the Tribunal is acting as an investigative body, not simply an adjudicator in an adversarial proceeding?

MR WHITINGTON: As my learned friend put it – I think it was from Trueman – it has an admixture of roles, it is, if you like, partly inquisitorial, partly it is involved in a forensic contest between two sides, but in this case it was not within the Tribunal’s power to call Ms Hamilton-Smith and the reliance on Trueman is misplaced because the observations that my learned friend relies on from Trueman fell from the court in circumstances where the Tribunal had failed to call the practitioner himself - - -

HIS HONOUR: Well, whether that is a sufficient distinction is a point I do not presently see value in exploring. You say it was not within the Tribunal’s power to call Ms Hamilton-Smith. Why not?

MR WHITINGTON: Because she was resident in Hong Kong, your Honour.

HIS HONOUR: Yes.

MR WHITINGTON: And, I can add, unwilling to come back to the jurisdiction, so there was nothing that the Tribunal itself could do. Mr Viscariello did not seek to move the Tribunal to have it do anything, but more than that, he did not assert that the affidavits should be given testimonial effect. As to this side wind about the authenticity of the affidavits, your Honour should appreciate what my learned friend has not told you and that is that the Tribunal treated the affidavits as having been sworn by Ms Hamilton-Smith. In other words, they accepted the authenticity of the signatures; they treated them as her affidavits.

HIS HONOUR: Yes.

MR WHITINGTON: But, in a sense, that is beside the point because the clear evidence was that she did not have the means within her own experience and knowledge to depose to the subject matter of the affidavits. So the obvious conclusion open was that the inspiration for the affidavits was Mr Viscariello, he being the sole source of the knowledge, and that, of course, was confirmed when he gave evidence before Justice Debelle based upon his own direct knowledge of the critical issue. He said, on the critical issue, that the company was acting in its own right, not as trustee, and that was because of things he had in his own head. That was because - - -

HIS HONOUR: Mr Whitington, can I attempt to summarise where we have thus far got to? As I understand it, there are five points that you make. One, Justice Debelle found the practitioner to have lied. Two, the practitioner gave evidence to the Tribunal; his evidence was rejected. Three, the practitioner did not submit to the Tribunal that the affidavits corroborated his account; they were put forward as part of the history. Four, it was not within the Tribunal’s power to call Ms Hamilton-Smith, she

being a resident of Hong Kong. Five, Mr Viscariello did not seek to have the Tribunal do anything to secure the evidence of Ms Hamilton-Smith and, further, did not seek to have the Tribunal act on the affidavits. Are those the points that have thus far been made?

MR WHITINGTON: Yes, your Honour, and with one addendum, if I might, and that is that on the hearing of the appeal Mr Viscariello did not submit contrary to any of those points, it was only on the reopening that Mr Viscariello sought - - -

HIS HONOUR: Is there any additional point other than those five, plus possibly a sixth, that Mr Viscariello did not submit to the contrary of one to five in the first round of the Full Court? Is there any additional point you would wish to make?

MR WHITINGTON: Not going to the essence of the matter, no, your Honour.

HIS HONOUR: I need not trouble you further, Mr Whitington. Yes, Mr Kendall.

MR KENDALL: One, nothing has been said which answers the fact that this hearing before the Tribunal is not simply an adversarial proceeding, and our learned friends’ submissions proceed on the basis that it was purely an adversarial proceeding. It is not, it is an inquiry. Second, at no stage was our learned friend, or are our learned friends in their written submission or now able to point to any point where it was said in the Tribunal that the affidavits were tendered for their historical effect only at the time of tender. On each occasion when they were tendered, they were tendered without limitation.

Next, we have read to your Honour already page 68 of the transcript of submissions by Mr Wells of counsel before the Full Court and we rely on the fact that he did make reference to the evidence of Ms Hamilton-Smith. Next, there was a ground of appeal taken – that is ground 1.3 – concerning the failure to have regard to that evidence. It is in the papers, your Honour, in the folder. Unfortunately, these are not numbered, but the application for special leave to appeal contains the third notice of appeal in the Full Court. It is about two-thirds of the way through the folder. It is referred to in page 3 of our summary of argument on the special leave application.

HIS HONOUR: Yes. If you read to me the ground - - -

MR KENDALL: I will read the ground, yes. The ground is 1.3:

The Tribunal wrongly rejected the force of the evidence comprised by the Affidavit of Ms Hamilton-Smith sworn on 3rd October 2006 to the effect that J & L lodged the development application not as trustee of the SP Trust but in its own right. The Tribunal rejected this relevant and probative evidence apparently because the Tribunal wrongly found that Ms Hamilton-Smith “was interstate or overseas from 5 September to 30 October” at [67]. The said affidavit was tendered by the Respondent and therefore could not be contradicted by the respondent. The finding that Ms Hamilton-Smith was “overseas until 30 October” was contrary to the evidence purportedly relied upon by the Tribunal . . . which was to the effect that Ms Hamilton-Smith had returned by 3 October 2006 -

Now, the matter of the dates, as to whether it was 3 or 30 October, was clarified in the Full Court’s first reasons and there is no issue about that. It is accepted that she returned on 3 October so that point falls away, but the principal point taken in the ground is that the Tribunal wrongly rejected the force of the evidence. So it was a live issue before the Full Court, and the Full Court approached it in that way because – and I have already referred to these paragraphs, but at 152 through to 154 of its first reasons it is clearly finding a way to avoid the evidentiary content of those affidavits by saying that she was not a director at the appropriate time and, of course, that is the error that led to the reopening application.

Can I just refer your Honour to something else? At page 309 of the transcript before the Tribunal, at the top of the page, and it is in that bundle – now, this is in November 2010, and the discussion about all of this begins at page 305, but at the top of page 309 Mr Whitington says:

And can I say I’ve been instructed no more than about five minutes ago, the board would be prepared to and would wish to bring Ms Tanya Hamilton-Smith to Adelaide to proof her properly. So far their communications have been by email and telephone, but they would certainly wish to see her. I will disclose this frankly; Ms Hamilton-Smith has apparently fallen out badly with Mr Viscariello, so the board has to –

and so on. So it was an issue then that the Board was going to call Ms Hamilton-Smith. One last matter, the circumstance in which the affidavits came about, I have referred to the Master’s order. I will not take your Honour to it except to say that it is included in the second affidavit of Mr Viscariello. It is exhibit JV2. Significantly there is on it on the right-hand side initials, the evidence of which was that counsel had put these initials there, and your Honour will see two initials, THS, standing for Tanya Hamilton-Smith, against certain requirements to swear affidavits, so that counsel was thereby directing who should swear the relevant affidavits

in accordance with the order of the District Court which was made on 20 September 2006. They are all of the matters, if your Honour pleases.

HIS HONOUR: Thank you very much, Mr Kendall.

MR WHITINGTON: Might I just correct something? My learned friend has just referred your Honour to the initials on JV2, to Mr Viscariello’s affidavit. What was put to the Full Court and accepted in the Full Court was that they were not initials put there by Mr Viscariello’s counsel, they were put there by my junior counsel in the Tribunal hearing and that this copy came to be copied as an exhibit, and so these are not initials put there by Mr Viscariello’s counsel directing that something be done, they were unfortunately and fortuitously put on a court document by my counsel. That was explained to the Full Court and accepted. Might I also say, your Honour, in relation - - -

MR KENDALL: Your Honour, that is in fact the case. Your Honour, I accept that.

HIS HONOUR: Just a moment, Mr Kendall, you will sit down. Mr Whitington.

MR WHITINGTON: Your Honour, I was just going to say in case there is some implication that I might have misled the Court in relation to the transcript at page 309, I did tell the Tribunal that the Board would wish to bring Ms Hamilton-Smith to Adelaide to proof her properly, but in view of what has been put I should say that the Board did attempt to do that and she declined to come. If it pleases.

HIS HONOUR: Mr Kendall.

MR KENDALL: There is one matter I should correct, I was in error about the initials and I apologise.

HIS HONOUR: Yes.

MR KENDALL: I had completely forgotten that it had been clarified previously and I apologise for the error.

HIS HONOUR: Thank you, Mr Kendall.

On 3 April 2012, the Legal Practitioners Disciplinary Tribunal, established pursuant to the Legal Practitioners Act 1981 (SA), reported that John Viscariello, a legal practitioner, had given certain evidence in the Supreme Court of South Australia, before Justice Debelle, falsely and dishonestly. The Tribunal found that Mr Viscariello had engaged in unprofessional conduct in this and in another distinct and separate respect. The allegation of unprofessional conduct in this separate respect may be put aside from consideration altogether.

The Tribunal recommended that disciplinary proceedings be commenced against Mr Viscariello in the Supreme Court of South Australia.

Mr Viscariello appealed to the Supreme Court of South Australia against the decision of the Tribunal and, in particular, the findings that it had made. On 21 December 2012, the Full Court of that court (Justices Gray, Sulan and Blue) dismissed Mr Viscariello’s appeal against the Tribunal’s decision and adjourned the further hearing of the disciplinary proceedings which the Legal Practitioners Conduct Board had instituted against Mr Viscariello in the Supreme Court – see Viscariello v Legal Practitioners Conduct Board [2012] SASCFC 147.

Mr Viscariello subsequently applied to the Full Court to reopen his appeal against the Tribunal’s decision alleging that the Full Court had made material errors of fact. On 12 April 2013, the Full Court (Justices Gray, Sulan and Blue) dismissed the application to reopen – see Viscariello v Legal Practitioners Conduct Board (No 2) [2013] SASCFC 27 – and again adjourned the further hearing of the disciplinary proceedings.

On 10 May 2013, Mr Viscariello filed an application for special leave to appeal to this Court against the Full Court’s order dismissing the application to reopen the appeal. That application for special leave to appeal has proceeded to the point where the respondent has appeared and Mr Viscariello has filed his summary of argument and his draft notice of appeal.

In the meantime, however, on 6 May 2013, the Full Court had heard argument in the disciplinary proceedings and, on 21 May 2013, the Full Court ordered that Mr Viscariello’s name be removed from the roll of practitioners – see Legal Practitioners Conduct Board v Viscariello [2013] SASCFC 37. In its reasons of 21 May 2013, the Full Court recorded some aspects of the course of proceedings in that court which are presently relevant. The court said – see [2013] SASCFC 37 at paragraphs 7 to 9:

Counsel for the practitioner –

I interpolate Mr Viscariello –

advised the Court that the practitioner proposed to seek special leave to appeal to the High Court with respect to this Court’s dismissal of the application to reopen the practitioner’s appeal. The Court was provided with a draft of the proposed application for special leave. The practitioner applied to adjourn the hearing of the Board’s application for an order striking the name of the practitioner from the roll of legal practitioners.

8 During the hearing of the application, the Court suggested that the application for a stay could be viewed as premature. The Court suggested that an appropriate procedure that could be followed was to hear the parties’ submissions with regard to the strike off application and that, at the time of judgment, the application for a stay could be pursued. The Court could then determine whether to grant a stay with respect to the orders to be made. In the event that the Court was not prepared to grant a stay, a short stay could be granted to enable the practitioner to apply to the High Court for a stay. It was intimated that the Court would make available to the parties its reasons and proposed orders on the Board’s application and would hear any further submissions on consequential matters before publishing its reasons and making formal orders.

9 Counsel for both parties agreed that the proposed procedure was appropriate in the circumstances. The application for a stay at this time was not pressed.

Subsequently, on 31 May 2013, the Full Court did grant a 28 day stay of its orders striking off Mr Viscariello so that he could apply to this Court for any further stay of execution of its orders – see Legal Practitioners Conduct Board v Viscariello (No 2) [2013] SASCFC 47. The Full Court refused Mr Viscariello’s application for a longer stay and also refused his application for the court to make orders suppressing publication of the orders it had made and the proceedings that had occurred in the Full Court.

On 11 June 2013, Mr Viscariello applied for special leave to appeal against the whole of the judgment of the Full Court of the Supreme Court of South Australia given on 21 May 2013. On the following day he applied by summons for orders that, subject to such conditions as this Court saw fit to impose, the orders of the Full Court of the Supreme Court of South Australia striking him off be stayed pending the hearing and determination of his application for special leave to appeal in the first application for special leave which he had made in respect of the Full Court’s refusal to reopen its decision on the appeal against the decision and findings of the Tribunal. The stay which is now sought is a stay, not only pending the hearing and determination of that earlier application for special leave to appeal, but also of course a stay pending determination of an appeal that is filed in consequence of a grant of special leave.

In support of his application, Mr Viscariello has sworn to the circumstances in which he has hitherto been conducting legal practice as one of two directors of and equal shareholder in a company called Commercial and General Law (SA) Pty Ltd. He swears, and it is convenient to assume for the purposes of this application, that if he does not obtain a stay of the orders of the Full Court striking him off the successful continuation of the legal practice conducted by Commercial and General Law (SA) Pty Ltd will be imperilled.

He further swears, and again it is convenient to assume for the purposes of consideration of the stay application, that if special leave to appeal against the Full Court’s refusal to reopen the appeal against the Tribunal’s decision and findings were granted and an appeal were to succeed, he may, even would be deprived to an appreciable, even a substantial extent, of the fruits of that success having regard to not only the delay that would be occasioned but also the damage that would be done to his reputation and practice in the intervening period.

Although it is convenient to make the assumptions which I have described, it may be noted that in Legal Practitioners Conduct Board v Viscariello (No 2) [2013] SASCFC at 26 the Full Court recorded that:

We consider it relevant that counsel for the practitioner accepted that his rights would not be rendered nugatory in the event of a refusal of a stay.

Whether or to what extent the assumptions that I have indicated I will make are consonant with the basis on which the application for stay was prosecuted in the Full Court is a matter that need not be examined.

The principles that are to be applied in determining whether or not to grant a stay of orders pending hearing and determination of an application for special leave to appeal are well established. It is convenient to identify those principles by reference to the decision of Justice Brennan in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; (1986) 161 CLR 681. It is to be recalled that in that decision and in many other decisions of the Court reference has been made to the inherent jurisdiction of this Court to grant a stay pending the hearing of an application for special leave to appeal as an extraordinary jurisdiction in respect of which exceptional circumstances must be shown before its exercise is warranted.

Justice Brennan in Burgundy Royale [1986] HCA 84; (1986) 161 CLR 681 at 685 identified four considerations as bearing upon whether a stay should be granted when the Court is satisfied that a stay is required to preserve the subject matter of the litigation. His Honour said that:

it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.

As is apparent from the course which I directed counsel to take in argument, it is, in my opinion, sufficient in this case to focus upon only one of these considerations in this application, namely whether there is a substantial prospect that special leave to appeal will be granted. For present purposes, I am content to assume, without deciding, that each of the other considerations mentioned by Justice Brennan will be met and I am further content to assume, again without deciding, that this is a case in which the Court should be satisfied that a stay is required to preserve the subject matter of the litigation.

Mr Viscariello submits that in this case he has good prospects of obtaining special leave to appeal against the orders of the Full Court refusing leave to reopen his appeal against the Tribunal’s decision. It is necessary then to say something about the circumstances that gave rise to that application for leave to reopen.

The application to reopen the Full Court’s decision centred upon the treatment given by the Full Court in its reasons for judgment of two affidavits which had been sworn by Mr Viscariello’s then domestic partner, Ms Hamilton-Smith, and in which Ms Hamilton-Smith deposed to the capacity in which a company, J & L Development Pty Ltd, had engaged in a proposed development.

Two affidavits were sworn by Ms Hamilton-Smith. One had been filed in proceedings in the District Court of South Australia, and the other had been filed in the Supreme Court of South Australia. The proceedings that took place in the Supreme Court of South Australia before Justice Debelle were associated with an issue of whether the company, J & L Development, should be held to have acted on its own behalf or as trustee for a trust in conducting the development. If it had acted on its own behalf and not as trustee, orders made against J & L Developments might then not have been satisfied by resort to trust property of which J & L Developments was trustee.

In its reasons of 21 December 2012, which were the first reasons given by the Full Court for dismissing Mr Viscariello’s appeal against the decision and findings of the Tribunal, the Full Court had said more than once that at the time of the events to which Ms Hamilton-Smith deposed in her affidavit she was not a director of the company - see [2012] SASFC 147 at 145 and 152 to 155. In its later reasons of 12 April 2013 refusing the application for leave to reopen, the Full Court accepted that this account of Ms Hamilton-Smith’s connection with J & L Developments was not accurate - see [2013] SASCFC 27 at 16.

It is upon this foundation that Mr Viscariello sought in the Full Court and again seeks in this Court to urge that the Full Court and the Tribunal should have treated the affidavits sworn by Ms Hamilton-Smith as corroborative of the account of events which Mr Viscariello had given in evidence before Justice Debelle in the Supreme Court of South Australia.

In answer to the application for special leave to appeal and the contention that that application enjoys sufficiently substantial prospects of success to warrant a stay, the respondent Legal Practitioners Conduct Board makes a number of points. First, they observe that Justice Debelle, having heard oral evidence from Mr Viscariello, rejected his evidence and found that he had not been truthful in that evidence. Mr Justice Debelle made that finding in circumstances where he had rejected reception of the affidavit evidence of Ms Hamilton-Smith on a basis which Mr Viscariello says is now evidently flawed. Justice Debelle declined to receive the evidence of Ms Hamilton-Smith on the basis that she was not at relevant times a director of the company, whereas the fact is that she was. Be this as it may, the Board points to the fact that Justice Debelle, having heard the evidence of Mr Viscariello, disbelieved him on his oath.

The second point the Board makes is that Mr Viscariello gave extensive evidence to the Tribunal about the matters which had been the subject of litigation in Justice Debelle’s court and about which Mr Viscariello had not been believed. The Tribunal rejected his evidence and found that he had deliberately told lies to Justice Debelle.

The Board further submits that Mr Viscariello did not submit to the Tribunal that the affidavit or affidavits of Ms Hamilton-Smith were corroborative of his account given on oath in evidence to the Tribunal. Mr Viscariello responds to that assertion by noting that the affidavits, having been placed before the Tribunal, should be regarded as having been placed in evidence for all purposes including the purpose of being received as evidenced of the truth of their contents.

Fourthly, the Board submits that it had not been within the Tribunal’s power to call Ms Hamilton-Smith to give evidence in the course of its inquiry, she then being resident in Hong Kong. Whether or not that is so, it is of importance to notice that a proposal, however tentatively expressed it may have been, that Ms Hamilton-Smith give evidence by video link from Hong Kong was resisted by Mr Viscariello. Counsel for Mr Viscariello today points to the undoubted fact that taking evidence by video link is not always satisfactory. It is, however, of importance to notice that the evidence of Ms Hamilton-Smith, to which Mr Viscariello would point and upon which he would rely, is evidence that would be in his favour. That is not consistent with resisting, as he did at the Tribunal, the suggestion that her evidence be taken by video link.

Fifthly, the Board points to the fact that Mr Viscariello did not seek to have the Tribunal take any step to secure the evidence of Ms Hamilton-Smith and did not submit, at least distinctly submit, to the Tribunal that the Tribunal should act upon her affidavits.

Finally, the Board submits that in the proceedings that culminated in the Full Court giving its decision of 21 December 2012, Mr Viscariello did not submit to the contrary of any of the five propositions which have earlier been identified.

In my opinion, it is necessary to bear at the forefront of consideration of the matters that have been argued today that Mr Viscariello gave evidence both before Justice Debelle and the Tribunal and on neither occasion was he believed. When now it is submitted that the Tribunal should have undertaken inquiries on its own account to determine whether there was evidence which supported Mr Viscariello’s account of events, being evidence in the form of the two affidavits sworn by Ms Hamilton-Smith, it is in my opinion necessary to recognise first that this was not a point advanced to the Tribunal in the course of its hearing, and second, that the evidence upon which such store is now placed in support of this application was untested affidavit evidence about a legal conclusion.

In the circumstances of this matter, in my opinion the applicant would not enjoy sufficient prospects of demonstrating that it was not open to the Full Court to hold that the Tribunal’s finding that Mr Viscariello had told lies on oath in the Supreme Court of South Australia should not be set aside. Nor would he enjoy sufficient prospects of showing that the Full Court should have set the Tribunal’s findings aside and remitted the matter to the Tribunal for rehearing. That is, I am not persuaded that Mr Viscariello enjoys such prospects of success of showing that there should be a grant of special leave to appeal against either the decision to refuse reopening or the decision to strike him off as would warrant a grant of a stay of the Full Court’s orders. The application for stay is refused.

MR KENDALL: If your Honour pleases.

MR WHITINGTON: The respondent would seek costs of the summons, your Honour.

HIS HONOUR: What do you say, Mr Kendall? Can you resist costs?

MR KENDALL: We cannot resist that, your Honour.

HIS HONOUR: The stay is refused with costs. Adjourn the Court.

AT 5.02 PM THE MATTER WAS CONCLUDED