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VISCARIELLO v LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL & ANOR [2019] SASC 98 (7 June 2019)

Last Updated: 11 June 2019

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.

VISCARIELLO v LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL & ANOR

[2019] SASC 98

Judgment of The Honourable Justice Bampton

7 June 2019



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

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL

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

ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - APPLICATIONS

Application by second defendant for, inter alia, summary dismissal of action for judicial review – where judicial review action commenced out of time challenging the validity of the laying of charges against the plaintiff by the Legal Practitioners Conduct Board in the Legal Practitioners Disciplinary Tribunal that led to a finding of unprofessional conduct and the plaintiff’s name being struck off the roll of practitioners – where plaintiff unsuccessfully appealed the finding and strike off order – whether charges validly laid, amended, and prosecuted in the Legal Practitioners Disciplinary Tribunal – whether grounds for judicial review exist.

Held, in summarily dismissing the action for judicial review: each charge was validly laid, amended and prosecuted before the Legal Practitioners Disciplinary Tribunal – the out of time action for judicial review cannot succeed on any view of the facts or law.

Legal Practitioners Act 1981 (SA) s 82, s 86, s 88, s 89; Supreme Court Civil Rules 2006 (SA) r 200A, r 200B, r 200C, r 242; Legal Practitioners Disciplinary Tribunal Rules (SA) r 4, r 9; Fences Act 1975 (SA); Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA) Pt 4 Sch 2 cl 13, cl 14; Freedom of Information Act 1991 (SA), referred to.

Viscariello v Legal Practitioners Conduct Board (2012-13) 284 LSJS 452; R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13; Viscariello v Legal Practitioners Disciplinary Tribunal; Viscariello v Legal Profession Conduct Commissioner [2016] SASCFC 107; Hall & Ors v City of Burnside & Ors [2006] SASC 283; (2006) 102 SASR 298; Hall v City of Burnside & Ors (No 9) [2008] SASC 361; General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, applied.

R v Halmi [2005] NSWCCA 263; Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22; B (A solicitor) v Victorian Lawyers RPA Ltd & Anor; G (A solicitor) v Victorian Lawyers RPA Ltd & Anor [2002] VSCA 204; (2002) 6 VR 642, distinguished.

Moyes v J & L Developments Pty Ltd (No 2) [2007] SASC 261; Viscariello v Legal Practitioners Conduct Board (No 2) (2013) 285 LSJS 501; Legal Practitioners Conduct Board v Viscariello (2013) 286 LSJS 125; Legal Practitioners Conduct Board v Viscariello (No 2) (2013) 233 A Crim R 534; Viscariello v Legal Practitioners Disciplinary Tribunal & Ors [2015] SASC 192; Viscariello v Livesey & Anor [2014] SASCFC 40; Viscariello v Legal Practitioners Disciplinary Tribunal [2015] SASC 116, discussed.

VISCARIELLO v LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL & ANOR
[2019] SASC 98

Civil: Application

  1. BAMPTON J: The Legal Profession Conduct Commissioner (“the Commissioner”) seeks orders that this action for judicial review commenced by John Viscariello be summarily dismissed, or that Mr Viscariello be declared a vexatious litigant, or that he provide security for costs.
  2. Mr Viscariello challenges the laying of charges against him by the Legal Practitioners Conduct Board (“the Board”) in the Legal Practitioners Disciplinary Tribunal (“the Tribunal”) that led to findings of unprofessional conduct and unsatisfactory conduct and his name being struck from the roll of practitioners. He “makes no bones” about the fact that he will not stop until he vindicates his position. He asserts “it took Mr [Henry] Keogh 20 years before he was vindicated. I’ve got a long way to go yet. But you can’t stop someone from trying to vindicate their innocence”.
  3. For the reasons that follow, I summarily dismiss the action for judicial review pursuant to r 200C of the Supreme Court Civil Rules 2006 (SA) (“the Rules”).

The charges laid before the Tribunal

  1. The Board laid two charges before the Tribunal charging Mr Viscariello with unprofessional conduct.

The first charge

  1. The first charge dated 20 August 2008 (“the first charge”) in Tribunal action 18 of 2008 (“the 2008 action”), which was subsequently amended pursuant to leave granted by the Tribunal on 9 December 2011, comprised two counts. The first count alleged that Mr Viscariello had engaged in conduct in an attempt to defeat adverse costs orders against J & L Developments Pty Ltd (“J & L Developments”). The second count alleged that Mr Viscariello falsely and dishonestly gave evidence before a Judge of this Court on 1 December 2006 in the matter of Moyes v J & L Developments Pty Ltd (No 2).[1]
  2. Mr Viscariello was represented by Mr Griffin QC at directions hearings held by the Chairperson of the Tribunal in relation to the first charge on 11 September, 29 October and 26 November 2008. At the directions hearing on 26 November 2008, the Board’s solicitor informed the Chairperson that the Board was seeking advice from counsel regarding the laying of another charge.

The second charge

  1. The second charge was laid on 2 February 2009 (“the second charge”) in Tribunal action 3 of 2009 (“the 2009 action). This charge was first amended on 22 April 2010. It was further amended on 9 December 2011 to allege that Mr Viscariello engaged in unsatisfactory conduct in pursuing a claim for contribution under the Fences Act 1975 (SA) on behalf of J & L Developments.
  2. Mr Griffin QC appeared for Mr Viscariello at the directions hearing held on 13 February 2009. On 24 February 2009, Mr Homburg of Fountain Bonig filed a notice of acting in the Tribunal in respect of both charges. Mr Griffin QC appeared at the directions hearings held on 24 April 2009 and 7 July 2009. Thereafter, Mr Homburg, Mr Hoile, or Mr Wells QC appeared as counsel for Mr Viscariello in the Tribunal.
  3. Mr Viscariello contested the first charge. By a statement of facts agreed between the Board and Mr Viscariello, Mr Viscariello admitted the facts alleged in the amended second charge alleging unsatisfactory conduct, and admitted that those facts amounted to unsatisfactory conduct.

The Tribunal’s Report with Finding

  1. On 3 April 2012, the Tribunal published its Report with Finding, finding Mr Viscariello guilty of unprofessional conduct in respect of the amended first charge in the 2008 action and guilty (on the basis of agreed facts) of unsatisfactory conduct in respect of the amended second charge in the 2009 action.
  2. On 12 April 2012, the Tribunal recommended that disciplinary proceedings be commenced against Mr Viscariello pursuant to s 82(6)(a)(v) of the Legal Practitioners Act 1981 (SA) (“the Act”) in respect of the finding of unprofessional conduct in the 2008 action and that he be reprimanded in respect of the finding of unsatisfactory conduct in the 2009 action.

The appeal against the Tribunal’s finding and recommendation

  1. On 1 May 2012, Mr Viscariello appealed to this Court against the Tribunal’s finding of unprofessional conduct and the recommendation that disciplinary proceedings be instituted in relation to the first charge. On 2 May 2012, the Board instituted disciplinary proceedings pursuant to s 89 of the Act against Mr Viscariello, seeking an order that his name be struck off the roll of legal practitioners.
  2. Mr Viscariello was represented by Mr Kendall QC and Mr Phillips at the appeal and the Board’s disciplinary proceedings, heard together by the Full Court. On 21 December 2012, the Full Court, in Viscariello v Legal Practitioners Conduct Board,[2] dismissed the appeal, finding that the evidence before the Tribunal overwhelmingly supported the conclusion that the first charge had been made out.[3] The Full Court, in relation to the disciplinary proceedings, determined that Mr Viscariello engaged in unprofessional conduct as charged.[4]

The application to reopen the appeal

  1. On 23 January 2013, Mr Viscariello made application to reopen the appeal. The application was dismissed by the Full Court on 12 April 2013 in Viscariello v Legal Practitioners Conduct Board (No 2).[5] Mr Viscariello was represented by Mr Kendall QC and Mr Phillips on the hearing of this application.

The first application for special leave

  1. On 10 May 2013, Mr Viscariello filed an application for special leave to appeal to the High Court against the Full Court’s order dismissing the application to reopen the appeal (“the first application for special leave”).

The Full Court’s striking off order

  1. On 21 May 2013, the Full Court published it judgment striking off Mr Viscariello’s name from the roll of practitioners in Legal Practitioners Conduct Board v Viscariello.[6] That order was made final on 7 June 2013.
  2. In Legal Practitioners Conduct Board v Viscariello (No 2),[7] Mr Viscariello sought a stay of the Full Court’s orders pending application for special leave to appeal the dismissal of his application to reopen the appeal and for a stay of the order for strike off. The Full Court granted an interim stay for 28 days to allow Mr Viscariello to apply to the High Court for a stay pending his application for special leave.

The second application for special leave

  1. On 11 June 2013, Mr Viscariello applied for special leave to appeal against the Full Court’s judgment delivered 21 May 2013 striking off his name from the roll of practitioners (“the second application for special leave”). On 12 June 2013, Mr Viscariello applied to the High Court for a stay of the orders striking him off pending the hearing and determination of his first application for special leave. Mr Kendall QC argued the application for Mr Viscariello before the High Court. In refusing the application for the stay, Hayne J said:[8]
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.

The refusal of special leave

  1. Both the first and second applications for special leave were dismissed by the High Court on 3 December 2013.[9] The High Court in its reasons for refusing special leave noted that Mr Viscariello was largely seeking to reagitate the grounds rejected by the Full Court and held that no question of public importance suitable for the grant of special leave arose. The High Court further held that Mr Viscariello had not shown any error of principle in the approach of the Full Court to his application to reopen the appeal, and that his application for special leave in relation to the removal of his name from the roll of practitioners was without any prospects of success and did not otherwise demonstrate any error in the decision of the Full Court.

The 2014 judicial review action

  1. On 30 May 2014 and 30 June 2014 Mr Viscariello applied for permission to proceed with two applications for judicial review. Mr Viscariello asserts that those applications for judicial review did not relate to the grounds he seeks to agitate in this action for judicial review. One application sought a declaration that the Tribunal’s Report and Finding dated 3 April 2012 that he was guilty of unprofessional conduct was void and of no effect. The second application sought a like declaration in relation to the finding of unsatisfactory conduct. Justice Parker refused to grant permission to Mr Viscariello to proceed with those actions for judicial review on 7 August 2015.[10]
  2. Mr Viscariello appealed that decision to the Full Court. In Viscariello v Legal Practitioners Disciplinary Tribunal; Viscariello v Legal Profession Conduct Commissioner,[11] the Full Court dismissed the appeal against Parker J’s refusal. Thereafter, Mr Viscariello made application for special leave to appeal to the High Court, which was dismissed.[12]
  3. Mr Viscariello continues to dispute the findings of the Tribunal that he was guilty of unprofessional conduct and unsatisfactory conduct. He regards the hearing before the Tribunal, the hearing of the appeal, and the hearing of his application to reopen the appeal as unfair and irregular, resulting in a substantial miscarriage of justice.
  4. Mr Viscariello contends that the grounds included in the statement of grounds supporting this action for this judicial review have not ever been the subject of any prior challenge by him, either before the Tribunal, on appeal (including the application to reopen the appeal before the Supreme Court),[13] or in any application for special leave to the High Court, or in the 2014 judicial review actions dismissed by Parker J.

This action for judicial review

  1. Mr Viscariello, by this action for judicial review, seeks to set aside the Tribunal’s Report with Finding dated 3 April 2012, the Tribunal’s Recommendations and Orders dated 12 April 2012 and “all of the Orders made by” this Court “which followed consequent on the Tribunal’s Report with Findings ... and ... Recommendations and Orders” (sic).
  2. The Tribunal is named as the first defendant. In accordance with the usual practice,[14] the Tribunal has given an undertaking to abide the decision of the Court and has taken no active role.
  3. The Commissioner is named as the second defendant. It is to be noted that the Board was replaced on 1 July 2014 by the Commissioner when the Act was amended by the Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA) (“the Amendment Act”).[15] Pursuant to the transitional provisions prescribed in cl 13 in pt 4 of sch 2 of the Amendment Act, the functions of the Board were transferred to the Commissioner and, pursuant to cl 14, the Act applies retrospectively in relation to complaints, conduct, investigations, inquiries and proceedings issued prior to 1 July 2014.
  4. Mr Viscariello has filed a statement of grounds in accordance with r 200A(3) of the Rules. He has filed an interlocutory application as a “precaution” in the event he requires an extension of time and permission to commence the action (“the application for an extension of time”).
  5. The Commissioner has filed a response in accordance with r 200B of the Rules. He has also filed an interlocutory application (amended on 30 July 2018) supported by his first and second affidavits both sworn on 18 July 2018 seeking, inter alia, summary dismissal of this action pursuant to r 200C, or that Mr Viscariello be declared a vexatious litigant, or that he provide security for costs (“the Commissioner’s application”).
  6. When the matter first came on for hearing in the Chamber List before Parker J on 29 June 2018, Mr Viscariello suggested that the action be referred to the Full Court. Justice Parker said that it is preferred that the Full Court not deal with factual matters and adjourned the matter to another judge in the Chamber List.
  7. On 27 July 2018 during a Chamber List hearing before me, Mr Viscariello indicated that he would make application that I recuse myself. He also submitted that the matter should be dealt with by the Full Court and asked that it be listed before another judge. He said that I had predetermined views about him and he was not going to get a fair hearing. He also said that he wanted to engage interstate counsel and that he did not have any counsel availability. I adjourned the matter for one week so that Mr Viscariello could ascertain counsel’s availability and make any application he wished to make by 1 August 2018. During the period of the adjournment, Mr Viscariello requested that I recuse myself because of my decision in Viscariello v Legal Practitioners Disciplinary Tribunal & Ors[16] and the fact that I was a member of the Full Court that determined not to grant leave to appeal in Viscariello v Livesey & Anor.[17]
  8. Mr Viscariello filed a second interlocutory application supported by his second affidavit sworn on 1 August 2018 seeking orders that the action and all interlocutory applications be referred to the Full Court. He also sought an order that the Commissioner be restrained from conducting the defence of this action, alleging that he has a conflict of interest and that he be required to delegate the defence of the matter to a solicitor independent of him. Mr Viscariello also asserted that the solicitor who has the conduct of this matter for the Commissioner, Ms Billich, has a conflict of interest in the matter.
  9. In response, Ms Billich swore her first affidavit on 2 August 2018 wherein she deposes that the Commissioner has formed the view that he has no conflict of interest that pertains to this action for judicial review. Ms Billich also deposes that she has no conflict of interest in relation to Mr Viscariello in this matter or in any other matters.
  10. During the directions hearing on 3 August 2018, I declined to recuse myself. I also declined to refer the action to the Full Court and determined that the Commissioner’s application should be heard as a preliminary issue.
  11. When I asked Mr Viscariello for his counsel’s availability or whether he intended to represent himself, he said that he opposed the application being listed primarily because there was a judgment which informs this matter which had been reserved by Hinton J. He said that he had succeeded so far in that matter and had a costs order in his favour. Mr Viscariello further said that he would need months to engage solicitors and counsel and that there was no prejudice to the defendant in delaying the listing of this matter.
  12. I listed the Commissioner’s application for argument on 9 August 2018.
  13. During the hearing on 9 August 2018, Mr Viscariello expressed concern about the completeness of the extracts of the Board’s minutes exhibited to the Commissioner’s first affidavit. Mr Viscariello said that he needed to see the original of the Board’s minutes with all matters not relevant to him redacted so that he could be satisfied about the authenticity of those minutes. To overcome this issue, following the hearing on 9 August 2018, the Commissioner provided my chambers with six bundles comprising the Board’s original minutes for the relevant meetings together with a redacted copy of the minutes. A redacted copy was also provided to Mr Viscariello. The purpose of me receiving the original documents was so that I could satisfy myself that what had been provided to Mr Viscariello was an accurate redacted copy of the original minutes.
  14. At the adjourned hearing on 7 September 2018, I informed the parties that I had inspected the redacted version provided to my chambers against the original and I was satisfied that the redacted version was an accurate record of the matters pertaining to Mr Viscariello recorded in the original Board minutes.

Mr Viscariello’s submissions

  1. Mr Viscariello submits:
    1. The Board never made a “decision” or “determination” to lay a charge against him in the terms of the first charge.
    2. The Board never made a delegation to the Director of the Board authorising the Director of the Board to sign, file and serve a charge in the terms of the first charge.
    3. The Board never made a “decision” or “determination” to lay a charge against him in terms of the first charge as amended.
    4. The first charge as amended was not signed by a properly authorised delegate, and was not signed at all, and was therefore in contravention of the Legal Practitioners Disciplinary Tribunal Rules.
    5. The second charge as amended was never filed with the Tribunal.

Rule 200

  1. Rule 200 prescribes that an action for judicial review must be commenced as soon as practicable after the date when the grounds for the review arose and, in any event, within six months after that date. Rule 200(2) provides that if an action for judicial review is commenced more than six months after the grounds for review arose, the action cannot proceed without the Court’s permission.
  2. Mr Viscariello asserts that the grounds for his action for judicial review arose on 9 March 2018 or, in the alternative, on 22 December 2017. He contends that if the Court holds that the grounds arose more than six months before he filed his action, then he seeks an extension of time to commence the action. He says that he has no statutory rights of appeal now open to him and no other equally convenient, beneficial, satisfactory, or effectual legal remedy open to pursue the relief sought in the statement of grounds other than to bring this action for judicial review.

Mr Viscariello’s assertion of when the grounds for judicial review arose

  1. In his affidavit sworn on 19 June 2018 filed in support of this action, Mr Viscariello refers to the mandamus action he has commenced against the Commissioner, heard by Hinton J in March 2018 with judgment reserved. Mr Viscariello asserts that in preparing for that action he emailed the Tribunal’s Registry in December 2017 seeking a sealed copy of the original and any amended charges filed by the Board in the 2008 action and the 2009 action. On 22 December 2017, he received an email from Mr Hean of the Tribunal attaching a copy of the charges and amended charges he had requested. He asserts that at no time prior to 22 December 2017 was he aware that:
    1. the amended first charge was never signed by the Board;
    2. the second charge filed on 2 January 2009 bears the signature of the Director of the Board made one month later on 2 February 2009;
    3. the amended second charge bears the signature of the Director of the Board made on 22 April 2010, but was never filed with the Tribunal; and
    4. the Board never laid a charge against him with the Tribunal alleging the conduct which founded the Tribunal’s finding in its report of unsatisfactory conduct against him in the 2009 action.
  2. Mr Viscariello deposes that the Board abandoned and did not further pursue before the Tribunal the allegations the subject of the second charge or the amended second charge, but instead agreed with his counsel to certain reformulated facts which he agreed amounted to “unsatisfactory conduct subject to the decision of the Tribunal”. Mr Viscariello contends that, as a result of the correspondence from Mr Hean, he “became concerned that the Board and the Tribunal may not have followed or complied with proper legal procedures or formalities concerning the laying of charges and the amended charges” against him.
  3. As a consequence, Mr Viscariello made application under the Freedom of Information Act 1991 (SA) for any and all resolutions or decisions made by the Board to lay charges or amended charges against him in the Tribunal in the 2008 action and the 2009 action. On 9 March 2018, Mr Viscariello received a Freedom of Information (“FOI”) determination. He contends that the only documents that were released to him under the FOI request were documents he already had. After receiving the FOI determination, Mr Viscariello requested internal review of the determination. The internal review upheld the determination. He then exercised his right to an external review. He deposes that at the time of swearing his affidavit the external review was not complete.
  4. Mr Viscariello contends that amongst the documents listed in the FOI schedule of documents he received with the FOI determination were two documents described as being authored by the Board. He submits that these documents are dated 12 December 2007 and 29 January 2009 and each bears the description “Extract of minutes”. He states that there are no documents listed in the schedule of documents described as “decision”, “resolution”, or “determination”.
  5. Mr Viscariello deposes:
Based on the facts and matters set out herein and in particular relying on the copies of the charges and the amended charges sent to me by Mr. Hean on 22 December 2017 and the documents listed in the FOI Schedule of Documents which I received on 9 March 2018 pursuant to the FOI Request, I believe that:
  1. the Board has not followed or complied with proper legal procedures and formalities concerning the laying of the charges and the amended charges against me with the Tribunal and in particular has not made a “decision” “resolution” or “determination” to lay against me before the Tribunal, the First Charge, the Amended First Charge, the Fence Charge, the Amended Fence Charge or a Charge alleging the conduct in terms which the Tribunal held in its Report with Findings amounted to “unsatisfactory conduct” by me as required by the [Act];
  2. the Tribunal has failed to comply with its statutory obligations to ensure that any charges or amended charges before it are filed with the Tribunal and signed by the “complainant” or signed by a properly authorised person on behalf of the “complainant” as required under the [Act] and the relevant Rules of the Tribunal and/or of the Supreme Court as applicable;
  1. there is a sufficient basis to support the grounds set out in the Statement of Grounds filed with this Action for Judicial Review.

(Emphases in original)

The Tribunal Rules

  1. Section 82 of the Act prescribes the procedure for proceedings before the Tribunal. Section 82(1) provides that a charge may be laid alleging unprofessional or unsatisfactory conduct on the part of a legal practitioner. Section 82(4) provides that, where a charge has been laid under s 82, the Tribunal must, subject to s 82(5), inquire into the conduct of the legal practitioner to whom the charge relates. Section 88 provides:

88—Rules of the Tribunal

Any three or more Judges of the Supreme Court may make rules for any of the following purposes:

(a) regulating the practice and procedure of the Tribunal;

(b) conferring on the Tribunal any additional powers necessary or expedient for carrying out its functions;

(c) making any other provision that is necessary or expedient for carrying into effect the provisions of this Part [Part 6—Investigations, inquiries and disciplinary proceedings] relating to the Tribunal.

  1. Rule 4 of the Legal Practitioners Disciplinary Tribunal Rules in operation from 19 January 1983 provides that a charge laid under s 82 of the Act:

(a) shall be in the Form 1 set out in the Schedule to the Rules;

(b) shall be served upon the Secretary of the practitioner to whom the charge relates; and except where the complainant is the society, upon the society;

(c) shall be signed personally by the complainant or by a solicitor acting on behalf of the complainant authorised by him in writing to do so.

  1. Rule 9 of the Legal Practitioners Disciplinary Tribunal Rules provides that:
Before or at the hearing of any proceedings the Tribunal may, upon the application of any party to the proceedings or without any such application, make such order or direction as the Tribunal in its discretion sees fit as to:

(a) the discovery and inspection of any documents;

(b) the giving of any further or better particulars of any charge;

(c) the procedure to be followed at the hearing;

(d) any other procedure with respect to the charge the subject of the inquiry or the proceedings; and

(e) the waiver of compliance with any of these rules.

Once a charge has been laid and is within the purview of the Tribunal, the Tribunal can in the exercise of its discretion prescribed by r 9 make directions or orders as it sees fit. The Tribunal clearly has authority to deal with its own procedure which includes granting leave to amend charges laid before it by the Board as it did on 22 April 2010 and 9 December 2011 in respect of the second charge and on 9 December 2011 in respect of the first charge as described below.

Analysis

  1. In my view, this action for judicial review is so late it should be struck out on that ground alone.
  2. As Doyle CJ said, in relation to the predecessor to r 200, in the decision of Hall & Ors v City of Burnside & Ors:[18]
The relatively short limitation period reflects the fact that judicial review is concerned with the validity of decision-making by individuals and bodies exercising statutory and other powers that must be exercised in the public interest. Such decisions often have direct and consequential effects on persons other than those immediately affected. In a range of circumstances it will often be a matter of significance for other persons and authorities to know whether or not such a decision is valid or has been subject to a legal challenge. There is a substantial public interest in being able to say, after a specified time, that such a decision can be treated as beyond attack. The very fact that the standing rules permit challenges to validity to be made by persons other than those directly involved in the decision-making process is a reason why there should be a relatively short period within which any such attack should be mounted.
The fact that r 98.06 requires that, quite apart from the six-month time limit, proceedings should be brought “as promptly as possible” emphasises the significance of the time limit.

The Full Court unanimously upheld and repeated the quote above in Hall v City of Burnside & Ors (No 9).[19]

  1. Further, having regard to the interlocutory history of the charges and the proceedings before the Tribunal, I am of the view that the grounds relied on by Mr Viscariello in this action are so obviously untenable that they cannot possibly succeed.[20]

The laying of charges

  1. The Commissioner deposes in his first affidavit to the way he familiarised himself with the history of the Board’s laying of the charges with the Tribunal. The Commissioner also explains that he asked Ms Billich to review the Board’s files concerning the first and second charges and to review the Tribunal’s files held in the Supreme Court Registry.
  2. Before the substitution of pt 6 div 2 by the Amendment Act, s 75(2)(d) provided that the Board could not delegate the making of a determination as to “whether to lay charges before the Tribunal”.
  3. I am satisfied having regard to the following documents copies of which are exhibits, prefaced by the letters “GMM”, to the Commissioner first affidavit that each ground asserted by Mr Viscariello is without any factual basis.

The Board’s resolution to lay the first charge

  1. GMM7 is an extract of the Board’s minutes of a meeting held on 13 December 2007 where the Board resolved that it was satisfied that there was unprofessional conduct on the part of Mr Viscariello and directed that a charge of unprofessional conduct be laid before the Tribunal pursuant to s 82 of the Act. The Board also authorised the Director of the Board (“the Director”) to sign the charge on behalf of the Board and authorised the Board’s solicitor to retain senior counsel and junior counsel to provide advice, draft and/or settle charges, and to represent the Board before the Tribunal. This was the decision to lay a charge of unprofessional conduct, the subject of the first charge.
  2. I am satisfied that the Board passed a resolution to charge Mr Viscariello with the first charge and directed the Director to carry out the necessary processes to ensure the first charge was signed, filed, and served.
  3. Following the Board’s resolution, a charge was laid with the Tribunal on 20 August 2008. GMM8 is a copy of the charge dated 20 August 2008 and signed by the then Director, Ms Rathbone, in the 2008 action.
  4. Ms Billich deposes in her second affidavit sworn on 8 August 2018 that on 22 August 2008 Mr Viscariello was served personally with the first charge and a covering letter by Mr Brenton Kitson of Adelaide Investigation Services. Exhibited to Ms Billich’s affidavit is a copy of an affidavit of service sworn by Mr Kitson on 25 August 2008. Mr Kitson’s affidavit exhibits the first charge dated 20 August 2008 signed by Ms Rathbone.
  5. GMM10 is the transcript of a directions hearing convened by the Chairperson of the Tribunal on 26 November 2008. Mr Kolarovich, the then Deputy Director of the Board, attended on behalf of the Board and informed the Tribunal that further investigations were continuing into the conduct of Mr Viscariello and that there was a possibility of a further charge being laid. Mr Griffin QC represented Mr Viscariello at this hearing.

The Board’s resolution to lay the second charge

  1. GMM11 is an extract of the Board’s minutes of the meeting held on 29 January 2009. This document records that on 29 January 2009 the Board resolved that a second charge of unprofessional conduct would be laid against Mr Viscariello with the Tribunal and authorised the Director to sign the charge on behalf of the Board. I am satisfied that the Board resolved to lay the second charge and directed the Director to carry out the necessary processes to ensure that the second charge was signed, filed, and served.
  2. The Commissioner deposes in his first affidavit that Ms Billich obtained a copy of the second charge in the 2009 action from the Tribunal’s Registry which, when filed at the Tribunal, was stamped with a received date of 2 January 2009. The signature of the then Director and the date 2 February 2009 appear on the last page of the document. The Commissioner concludes that the received stamp date must be an error. GMM13 is an internal Board document, dated 2 February 2009, which instructs the Board’s rounds person to file the second charge with the Tribunal Registry. GMM14 is a copy of a letter to Mr Viscariello dated 2 February 2009 enclosing a copy of the second charge and advising that a copy had also been forwarded to his counsel Mr Griffin QC. GMM15 is an affidavit of service sworn by Mr Kitson deposing to having served Mr Viscariello personally with the second charge and covering letter on 2 February 2009.
  3. It is reasonable to infer that the second charge was filed 2 February 2009.
  4. GMM16 records that Mr Homburg of Fountain Bonig wrote to the Deputy Director of the Board by letter dated 24 February 2009 advising that he now acted for Mr Viscariello and enclosing a notice of address for service in the 2008 action and the 2009 action.
  5. GMM17 is a copy of an interlocutory application for further and better particulars of the second charge filed in the Tribunal by Mr Homburg.

Amendment of the second charge

  1. GMM18 is the transcript of the argument for the further and better particulars heard by the Tribunal on 4 March 2010. It is to be noted that at pages 19 to 20 of the transcript, the Chairperson of the Tribunal referred to concerns he had with the wording of the second charge. Counsel for the Board suggested that the second charge could be amended, whereupon the Chairperson said that he wanted to see any proposed amendments before he gave leave to amend. Mr Viscariello was represented at this argument by Mr Hoile of counsel.
  2. GMM19 is a copy of the proposed amendments to the second charge which the Commissioner deposes were provided to the Board at its meeting on 15 March 2010.
  3. GMM20 is an extract of the Board’s minutes of the meeting held on 15 March 2010. The Commissioner deposes that on 15 March 2010 the Board’s Principal Legal Officer advised the Board that prior to amending the second charge an opinion should be obtained from senior counsel, Mr Whitington QC. The Board noted and accepted the Principal Legal Officer’s advice.
  4. GMM21 is an email from the Principal Legal Officer to the Board’s junior counsel, Ms Sheppard, referring to the proposed amendment to the second charge and detailing amendments suggested by the then Director. The email identifies that consideration had been given to whether it was necessary to refer the matter back to the Board for a resolution to file an amended second charge. The email refers to the Director considering that the Board did not need to pass a resolution in terms of the amended second charge as it did not relate to any additional conduct, nor add any additional conduct not already considered by the Board when resolving to lay the second charge initially.
  5. GMM22 is a letter dated 1 April 2010 forwarding a copy of the proposed amended second charge to Mr Homburg.
  6. GMM23 is an email dated 15 April 2010 sent by Mr Hoile to Board’s Principal Legal Officer stating that he required clarification of some particulars with respect to the proposed second charge, but confirming that Mr Viscariello’s instructions to him were that the charge could be amended by preparing a fresh document. Mr Hoile also stated in the email that “we will consent” to the amended second charge being formally made at the next hearing without convening the Tribunal beforehand.
  7. GMM24 is Mr Homburg’s letter to the Principal Legal Officer dated 20 April 2010 and GMM25 is the Principal Legal Officer response to Mr Homburg dated 20 April 2010 in relation to the amended second charge.
  8. GMM26 is a letter dated 21 April 2010 sent by the Principal Legal Officer to Mr Homburg attaching for his consideration “a copy of further amended charges”. The letter seeks Mr Homburg’s comments in relation to the amendments as a matter of urgency.
  9. GMM28 is the transcript of the Tribunal directions hearing held on 22 April 2010. Ms Sheppard appeared for the Board and Mr Homburg appeared for Mr Viscariello. Ms Sheppard informed the Chairperson that the second charge had been reworded and that there was no longer any opposition to the application to amend the document. Ms Sheppard said that she was in a position to finally amend the charge. Mr Homburg is recorded as informing the Chairperson, “We don’t oppose the amended charge being laid”. Accordingly, the Chairperson granted leave to the Board to amend the second charge dated 2 February 2009 in the 2009 action in terms of the amended charge initialled by him dated 22 April 2010. The document initialled by the Chairperson and signed by the then Director appears behind GMM28.
  10. GMM29 is an email from Mr Homburg to the Board attaching Mr Viscariello’s responses to the first charge and to the amended second charge.
  11. GMM30 is an extract of the Board’s minutes of the meeting held on 27 April 2010. The Commissioner deposes that at this meeting the Principal Legal Officer provided a report and legal advice to the Board as to the ongoing proceedings concerning Mr Viscariello before the Tribunal.

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

  1. GMM31 is the transcript of the Tribunal hearing on 27 April 2010, wherein the Tribunal was advised by Mr Whitington QC that the Board may not proceed with aspects of the second limb of the second amended charge. The Tribunal hearing continued on 28 April 2010 when Mr Whitington QC advised the Tribunal that the parties had come to an agreement on the wording of a document which would deal the amended second charge. The document referred to as an agreed statement of facts represented an agreement on facts that characterised Mr Viscariello’s conduct with respect to the second charge as unsatisfactory. Mr Whitington QC described this in the transcript as “the first limb of the Fences Act count”. GMM32 is a copy of pages six and seven of the transcript of the hearing on 28 April 2010. Mr Wells QC appeared with Mr Hoile as counsel for Mr Viscariello at the Tribunal hearing.
  2. GMM33 is an email from Mr Homburg to the Board dated 21 July 2010 referring to the statement of agreed facts which states:
I think the document ended up with Martin Hoile. The document in email form has subsequently traveled between Mr Viscariello and his counsel all of whom have contributed some edits. It is now in a form that I can submit to you for consideration.
  1. GMM34 is an email from Mr Homburg to the Board dated 9 November 2010 attaching Mr Viscariello’s edits to the statement of agreed facts.
  2. GMM35 is a letter written by the Principal Legal Officer to Mr Homburg dated 11 November 2010 with further proposed amendments regarding the statement of agreed facts.
  3. GMM36 is an extract of the Board’s minutes of the meeting on 18 May 2011, recording a resolution of the Board to “proceed with the prosecution of charges, action no’s 18 and 2008 and 3 of 2009 presently before the [Tribunal]”.
  4. GMM37 is a portion of the transcript of the Tribunal hearing, which continued on 9 December 2011, recording a discussion concerning the receipt of the agreed statement of facts. The Chairperson informed the parties “that there should be an amended charge” alleging unsatisfactory conduct in lieu of unprofessional conduct. The Chairperson granted leave to further amend the second charge on 9 December 2011.
  5. GMM37 also records that during the hearing on 9 December 2011 Mr Whitington handed up to the Tribunal copies of the first charge “noting on the charges certain aspects of the evidence given before Debelle J that we are not now pursuing on the counts”. Whereupon the Chairperson said, “And to that extent we grant leave to file that document”.
  6. GMM38 is a copy of the amended second charge in the 2009 action alleging unsatisfactory conduct. It is endorsed that it has been amended pursuant to leave granted by the presiding member on 22 April 2010 and by the Tribunal on 9 December 2011.
  7. GMM39 is the amended first charge in the 2008 action bearing an endorsement that it has been amended pursuant to the leave granted by the Tribunal on 9 December 2011. It is to be noted that amendments to the first charge are deletions to conduct and particulars that the Board was no longer pursuing.
  8. The Tribunal’s Report and Finding was published on 3 April 2012.
  9. GMM40 is the Tribunal record for the 2008 action and the 2009 action. Of note, Mr Viscariello was represented throughout the Tribunal proceedings by senior practitioners and senior counsel all experienced in disciplinary proceedings.

Conclusion

  1. The authorities that Mr Viscariello sought to rely on included an interstate criminal case[21] and a migration case.[22] Mr Viscariello also sought to rely on a disciplinary case affirming the need for strict statutory compliance by statutory boards;[23] however, as set out below, there was statutory compliance by the Board and the Tribunal. Further, disciplinary proceedings are not criminal in nature.[24] I adopt the Commissioner’s counsel’s reply submissions regarding the authorities relied on by Mr Viscariello and agree that they are distinguishable on their facts and do not assist in resolving this matter.
  2. Mr Viscariello asserts that he commenced this action within six months of the grounds arising. I am satisfied, having regard to the evidence relied on by the Commissioner, that the first and second charges laid in accordance with the Act and the Rules were served personally on him shortly after they were laid. He was also aware of all proceedings before the Tribunal, including the grants of leave to amend the first and second charges pursuant to the Legal Practitioners Disciplinary Tribunal Rules. Accordingly, no grounds arose in the six months preceding the commencement of this action.
  3. I am satisfied, having regard to the evidence relied on by the Commissioner, that in relation to the first charge the Board made a decision to lay the first charge on 13 December 2007 as demonstrated by GMM7.
  4. I am satisfied that the Board made a decision to authorise to its then Director to sign and serve the charge, evidenced by the Board’s minute of 13 December 2007 (GMM7).
  5. Having regard to the second affidavit of Ms Billich and its exhibits, I am satisfied that the first charge was signed and laid on 20 August 2008 and served on Mr Viscariello on 22 August 2008.
  6. The first charge was amended pursuant to leave granted by the Tribunal during a hearing on 9 December 2011 when Mr Viscariello was represented by Mr Wells QC and Mr Hoile. The effect of the amendments was to delete conduct and particulars that the Board was no longer pursuing. As the amendments did not allege further conduct by Mr Viscariello it can reasonably be inferred, given the Director was of the view that the amendments made pursuant to leave granted on 22 April 2010 to the second charge did not need to go back to the Board, the Board did not need to make a decision regarding the amendments to the first charge. This did not breach the Board’s statutory obligations under s 75 of the Act.
  7. In relation to the second charge, I am satisfied, by reference to exhibit GMM11, that the Board made a decision on 29 January 2009 to lay the second charge and authorised the laying of the charge to its then Director.
  8. In response to the allegation by Mr Viscariello that a second charge was never laid, GMM11, GMM13, GMM14, and GMM15 demonstrate that a charge was laid in the Tribunal on 2 February 2009.
  9. In response to Mr Viscariello’s alternative argument that the Board did not make a decision to lay the amended second charge and did not make a decision to delegate to the Director to sign, file, and serve the amended charge, I am satisfied that the Director was of the view that the final amendments made pursuant to leave granted 22 April 2010 were minor and did not need to go back to the Board. I am further satisfied that that view was correct and did not breach the Board’s statutory obligations under s 75 of the Act.
  10. Further, Mr Viscariello and his legal advisors were engaged in the crafting of the agreed statement of facts and were aware of the further amendments to the second charge to allege unsatisfactory conduct pursuant to leave granted on 9 December 2011.
  11. There is no basis for the action for judicial review in respect of the first charge or second charge.
  12. As submitted by the Commissioner, the Full Court has confirmed Mr Viscariello’s unprofessional conduct and ordered strike off, the High Court has refused special leave, and Mr Viscariello is trying to set aside the foundation of his original prosecution many years later.
  13. The matters relied on by Mr Viscariello in this action could have been raised before the Tribunal and the Full Court on appeal. Mr Viscariello and his legal advisors (all of whom are well versed in disciplinary tribunal matters) were intimately involved in the Tribunal proceedings and the appeal.
  14. In Viscariello v Legal Practitioners Disciplinary Tribunal; Viscariello v Legal Profession Conduct Commissioner,[25] Kourakis CJ, in recounting the history of events and referring to Mr Viscariello’s appeal against the Tribunal’s Report with Finding, said:[26]
... The Full Court found that the appellant had engaged in unprofessional conduct as charged and invited submissions as to the appropriate orders to be made in the disciplinary proceedings.
(Footnote omitted)

His Honour went on to say:[27]

... The grounds for review arose when the Tribunal made its findings and orders. That the appellant first chose to challenge the Tribunal’s decision by way of appeal, and not by judicial review, is quite relevant. Indeed, this case illustrates how greatly the purpose of the time limit for bringing proceedings pursuant to 6SCR200, which is to expedite judicial review proceedings, might be subverted if the appellant’s submission were accepted.
Moreover, the existence of a comprehensive appeal by way of rehearing is a reason for declining discretionary relief by way of judicial review and not a reason to allow judicial review proceedings to be prosecuted out of time.
The appellant’s applications were more than two years out of time. Parker J was correct to consider the application for an extension of time on the basis that the applications were ‘seriously out of time’.
(Footnote omitted)

His Honour’s following comments are highly pertinent to this matter:[28]

... It is plain on the very words of s 86(1) of the [Act], which confer a right of appeal against a purported exercise of power by the Tribunal, that on an appeal brought pursuant to that section the Supreme Court is empowered to grant relief for jurisdictional errors. Moreover, it is well-established by authority that an appeal brought pursuant to s 86 of the [Act] is an appeal by way of rehearing.
...
On an appeal by way of rehearing an appellant can impugn the subject determination on the ground of an error of law of any kind. All jurisdictional errors are errors of law.
Furthermore the grounds of appeal which the appellant now seeks to pursue would have been open to him even if an appeal under s 86 of the [Act] was an appeal in the strict sense and limited to errors of law. An appeal in the strict sense differs from an appeal by way of rehearing only in that, in the former case, the appeal court is limited to the evidence adduced below and must apply the law as it was at the time the decision below was made. That is also the position on an application for judicial review for jurisdictional error. ...
(Emphasis in original)
  1. The Board complied with Act and the Legal Practitioners Disciplinary Tribunal Rules in laying the first and second charges before the Tribunal. Mr Viscariello was legally represented during the Tribunal hearings on 22 April 2010 when the Board was granted leave to amend the second charge and 9 December 2011 when the Board was granted leave to amend the first charge and further amend the second charge. Each charge was validly laid, amended and prosecuted before the Tribunal. There has been no breach of the Board’s statutory obligations or jurisdictional error.
  2. There has been gross delay in bringing this out of time action for judicial review which cannot succeed on any view of the facts or law.
  3. I summarily dismiss this action for judicial review pursuant to r 200C of the Rules.

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

[2] (2012-13) 284 LSJS 452.

[3] (2012-13) 284 LSJS 452 at [138].

[4] (2012-13) 284 LSJS 452 at [180].

[5] (2013) 285 LSJS 501.

[6] (2013) 286 LSJS 125.

[7] (2013) 233 A Crim R 534.

[8]  [2013] HCATrans 149. 

[9] [2013] HCASL 188.

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

[11] [2016] SASCFC 107.

[12] [2017] HCASL 10.

[13] Viscariello v Legal Practitioners Conduct Board (No 2) (2013) 286 LSJS 125.

[14] R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35.

[15] Legal Practitioners Act 1981 (SA) pt 6 div 2 as substituted by Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA) s 44.

[16] [2015] SASC 192.

[17] [2014] SASCFC 40.

[18] [2006] SASC 283; (2006) 102 SASR 298 at [49]- [50].

[19] [2008] SASC 361 at [32].

[20] General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129-130 per Barwick CJ.

[21] R v Halmi [2005] NSWCCA 263.

[22] Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22.

[23] B (A solicitor) v Victorian Lawyers RPA Ltd & Anor; G (A solicitor) v Victorian Lawyers RPA Ltd & Anor (2006) 6 VR 642.

[24] Viscariello v Legal Practitioners Conduct Board (2012-13) 284 LSJS 452.

[25] [2016] SASCFC 107.

[26] [2016] SASCFC 107 at [36].

[27] [2016] SASCFC 107 at [56]- [58].

[28] [2016] SASCFC 107 at [60], [63]-[64].


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