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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
- 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.
- 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”.
- 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
- The
Board laid two charges before the Tribunal charging Mr Viscariello with
unprofessional conduct.
The first charge
- 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]
- 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
- 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.
- 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.
- 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
- 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.
- 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
- 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.
- 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
- 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
- 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
- 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.
- 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
- 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
- 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
- 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]
- 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]
- 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.
- 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
- 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).
- 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.
- 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.
- 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”).
- 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”).
- 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.
- 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]
- 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.
- 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.
- 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.
- 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.
- I
listed the Commissioner’s application for argument on 9 August 2018.
- 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.
- 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
- Mr
Viscariello submits:
- The
Board never made a “decision” or “determination” to lay
a charge against him in the terms of the first
charge.
- 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.
- The
Board never made a “decision” or “determination” to lay
a charge against him in terms of the first charge
as amended.
- 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.
- The
second charge as amended was never filed with the Tribunal.
Rule 200
- 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.
- 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
- 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:
- the
amended first charge was never signed by the Board;
- 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;
- 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
- 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.
- 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.
- 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.
- 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”.
- 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:
- 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];
- 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;
- 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
- 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.
- 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.
- 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
- In
my view, this action for judicial review is so late it should be struck out on
that ground alone.
- 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]
- 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
- 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.
- 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”.
- 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
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- It
is reasonable to infer that the second charge was filed 2 February 2009.
- 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.
- 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
- 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.
- 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.
- 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.
- 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.
- GMM22
is a letter dated 1 April 2010 forwarding a copy of the proposed amended second
charge to Mr Homburg.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- 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.
- 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.
- 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]”.
- 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.
- 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”.
- 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.
- 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.
- The
Tribunal’s Report and Finding was published on 3 April 2012.
- 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
- 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.
- 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.
- 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.
- 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).
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- There
is no basis for the action for judicial review in respect of the first charge or
second charge.
- 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.
- 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.
- 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)
- 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.
- 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.
- 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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