It is rare for one man to triumph against the establishment, especially when he has taken on a major insolvency firm and one of the country’s blue chip law firms.
After 12 long years in the courts, however, much of it battling PPB Advisory and Minter Ellison, small businessman John Viscariello has done just that.
Chief justice of the Supreme Court of South Australia, Chris Kourakis, handed down a landmark judgment this week that upheld Mr Viscariello’s claims of improper conduct.
Mr Viscariello’s retailing business had gone into administration in 2001. Lawyers and liquidators subsequently spent more than half a million dollars chasing a debt of just $28,000.
The ensuing slew of claims and counterclaims stretched from the Magistrates Court, through the Supreme Court, the Federal Court and even to the High Court, running up millions in costs. In many cases Mr Viscariello represented himself.
Justice Kourakis found liquidator Peter Macks, formerly of PPB and now of Macks Advisory, had fabricated documents, given “evasive and unconvincing testimony” to a creditors’ committee and engaged in multiple breaches of the Corporations Act.
“In this case the proceedings were, to the knowledge of Mr Macks and his advisers, prosecuted when there was no prospect of a real recovery [from Viscariello’s insolvent company] … and for the purposes, at least in part, of protecting Mr Macks from litigation, threatened and then brought, by Mr Viscariello,” Justice Kourakis wrote.
“The disconnection between the legitimate purpose of the litigation and Mr Macks’ personal purposes, and the way in which it was funded, were calculated to corrupt the proceedings. In the peculiar circumstances of this case, the proceedings were an abuse of process.”
The Viscariello judgment comes amid an inquiry by West Australian Federal Court Judge Anthony Siopis into the conduct of the Burrup receiverships where Indian billionaire Pankaj Oswal alleges PPB charged $34 million over 13 months, including $13 million on lawyers Freehills Herbert Smith.
The recoveries from Mr Viscariello’s companies were exhausted years ago but the lawsuits dragged on tortuously. This became a one-man fight against the system.
In early 2006, Mr Viscariello took action against Mr Macks for abuse of process and petitioned the Legal Practitioners Conduct Board to investigate South Australia’s leading law firm, Minter Ellison, which acted for Macks, and its Queen’s counsel. The Conduct Board took no action.
Instead, it went after Mr Viscariello, peppering the businessman with a plethora of “own motions” and demands for information over a number of years. Eventually they took his licence to practise law.
The $28,000 debt at the centre of the proceedings belonged to Mr Viscariello’s girlfriend at the time, Tanya Hamilton-Smith. In 2006, Mr Viscariello claims Mr Mack and Minters tried to get at his assets by bankrupting Ms Hamilton-Smith.
That action was settled in February, 2007 but Mr Macks and Minters were working on another strategy. In an unrelated matter, Ms Hamilton-Smith owed $4079.80, allegedly, to a Heidi George. Out of the blue, Ms George sued Ms Hamilton-Smith.
As it turned out, Mr Macks was funding the action. Internal correspondence showed Mr Macks was financing Ms George’s claim to bankrupt Ms Hamilton-Smith – and ultimately to get at Mr Viscariello.
The Kourakis judgment found the “personal financial interests” of Mr Macks had become enmeshed in the prosecution of Viscariello’s girlfriend Hamilton-Smith.
Minter Ellison declined to comment. Macks did not respond by deadline.