Practice and procedure - Case management - Inactive Cases List - Whether any party had taken any procedural step in the action in preceding 12 months - Whether action validly put on the Inactive Cases List - Whether order should be made that the case be removed from the Inactive Cases List - Turns on own facts

Rules of the Supreme Court 1971 (WA), O 29A r 18A, O 29A r 19

Application for removal from Inactive Cases List dismissed

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Carltona Ltd v Commissioner of Works [1943] 2 All ER 560

Freehill Hollingdale & Page v Bandwill Pty Ltd [2000] WASCA 150

Lashansky v Legal Practice Board [2006] WASC 247

Lashansky v Legal Practice Board [2010] WASCA 18

Legal Practice Board v Lashansky [2008] WASC 294

Legal Practice Board v Lashansky [No 2] [2009] WASC 78

Lifelong Investments Pty Ltd v Karageorge [2008] WASC 86

Love v Griffiths [2008] WASC 168

O'Reilly v The Commissioner of The State Bank of Victoria [1983] HCA 47; (1983) 153 CLR 1

Re Patrick John Walker, Commissioner for Fair Trading; Ex Parte Fremantle Islamic Association Incorporated [2003] WASC 252

Swick Nominees Pty Ltd v Norncott Pty Ltd [2008] WASC 24

The State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146

1 This action was placed on the Inactive Cases List on 24 December 2009. A letter dated 24 December 2009 from the court to the plaintiff, Mr Lashansky, (who is self-represented) and the solicitors for the defendants stated that the 'above matter has been transferred to the Inactive Cases List because no party has taken any procedural step in the matter for 12 months'. The letter gave notice that a case that remains on the Inactive Cases List for a continuous six-month period will be taken to have been dismissed for want of prosecution, referring to O 29A r 21 of the Rules of the Supreme Court 1971 (WA).

2 The letter was stated to be from the Principal Registrar. It was signed by my then associate, 'pp' (per proc), that is, on behalf the Principal Registrar. The plaintiff relies on that as a ground of alleged invalidity of the entry of the case into the Inactive Cases List.

3 By chamber summons dated 18 June 2010, the plaintiff applies for orders that include:

(a) an order removing this action from the Inactive Cases List; or

(b) leave to set aside the entry of this action into the Inactive Cases List as an irregularity.

4 Initially, the application was listed administratively for 24 June 2010, in accordance with the plaintiff's request contained in the O 59 r 9 memorandum supporting waiver of conferral that it be listed in the week commencing 21 June 2010.

5 The period of six continuous months from 24 December 2009 expires on 23 June 2010: s 62(3) Interpretation Act 1984 (WA).

6 On 22 June 2010 the first defendant's solicitors very properly wrote to my associate, copying the letter to the plaintiff, giving notice that it would appear that the six-month period would expire on 23 June 2010 and that there would consequentially be doubt as to whether any order for removal of the case from the list could be made on 24 June 2010.

7 Following receipt of that letter, the court, through my associate, wrote to the plaintiff stating that the court would be willing to hear the matter on 23 June 2010. The hearing then proceeded on 23 June 2010.

8 After hearing submissions on 23 June 2010, I dismissed the application, stating that I would publish reasons for doing so. These are my reasons.

9 The focus of the plaintiff's submissions was his contention that the action was not properly and validly put on the Inactive Cases List. The relevance of some of the plaintiff's submissions to this application was not easy to discern. I will summarise those that did appear to me to be relevant, and mention some others later in these reasons.

10 The plaintiff made three main submissions on why the action was not validly and properly put on the Inactive Cases List. They can be summarised as follows:

(1) the action should not have been put on the Inactive Cases List because it had not been inactive for 12 months;

(2) the putting of the action on the Inactive Cases List was induced by false statements in the first defendant's solicitors' letter of 16 December 2009, and consequently was not valid; and

(3) because the letter of 24 December 2009 was signed by an associate, not the Principal Registrar, the action was not validly put on the Inactive Cases List.

11 I will deal with those submissions in turn. I will then consider the question of whether, assuming the action was validly and properly put on the Inactive Cases List, an order should be made that it be removed from the list. The plaintiff made very few submissions directed to this last question.

12 It is convenient to outline the history of the action, and a related proceeding, before dealing with those four issues.

13 On 10 June 2004 the plaintiff filed a writ endorsed with a statement of claim.

14 An amended writ of summons and statement of claim was filed on 16 July 2004.

15 On 24 February 2005, the plaintiff was ordered to file a minute of amended statement of claim by 4 March 2005. In May 2005 the first defendant filed an application to strike out the action for want of prosecution based on the plaintiff's failure to comply with the earlier order. On 24 May 2005 it was ordered that the plaintiff file an application to amend his statement of claim by 30 June 2005.

16 On 2 August 2005, a springing order was made that unless the plaintiff file an application to amend his statement of claim by 25 August 2005, the claim be struck out and the action be dismissed.

17 On 25 August 2005 the plaintiff's application to amend the statement of claim was filed. The application came before a registrar on 6 September 2005. It was adjourned sine die. It has not been relisted.

18 Consequently, this action has not reached the stage where there is a statement of claim in its final form.

19 In the course of this action, various other applications have been adjourned sine die and remain unresolved. The plaintiff relied on that fact in support of this application, however, the relevance of it was not made clear to me. I am not persuaded that that fact assists the plaintiff in his present application.

20 On 5 October 2006, Templeman J heard an application by the plaintiff for a declaration and payment of moneys the subject of a lien. That relief was claimed against the second defendant, who is the liquidator of a former client of the plaintiff, and against the third defendant, who were solicitors for the second defendant. His Honour delivered reasons for the decision: Lashansky v Legal Practice Board [2006] WASC 247. His Honour made orders in favour of the plaintiff to the following effect:

(1) It be declared that the plaintiff has a first charge over the moneys paid to the second defendant (as liquidator of the plaintiff's former client) and held in the third defendant's trust account, such moneys amounting to $94,335.21 and interest thereon, less the second defendant's reasonable costs incurred in recovering the said moneys, being $8,120.15.

(2) The amount of $86,215.06 be forthwith paid out of the fund to the plaintiff.

(3) The second and third defendants pay the plaintiff's out of pocket expenses reasonably incurred in relation to the application.

21 In the course of his reasons, Templeman J made tentative findings about the conduct of Mr Bogue and Ms Howell, on behalf of the Legal Practice Board, in entering the plaintiff's premises and removing files. The findings were tentative because the Board did not appear on the application, no relief having been sought against it. His Honour (tentatively) found that there was no lawfully authority to forcibly enter and remove documents in the absence of the practitioner [87] - [95]. The plaintiff emphasises these findings.

22 In his affidavit sworn 18 June 2010 in support of this application, the plaintiff gives evidence about the steps which he took after the hearing before Templeman J on 5 October 2006. These relate to another proceeding: LPD 3 of 2000.

23 On 29 November 2000, the Legal Practice Board applied ex parte to McKechnie J for orders freezing the plaintiff's trust account and general office bank accounts. McKechnie J made orders in those terms on that day. Further orders were made in 2001. It is not necessary to detail those.

24 Relevantly for present purposes, on 27 October 2006, the plaintiff filed a chamber summons in LPD3 of 2000. In the chamber summons the plaintiff sought an order in substance that the Legal Practice Board provide an undertaking as to damages in respect of the ex parte relief that it had obtained many years ago (in November 2000).

25 The plaintiff says in par 38 of his affidavit sworn 18 June 2010 in support of this application that he believed that this step would enable him to seek appropriate damages that would obviate the need to run action CIV 1768 of 2004. I will return to this point.

26 The chamber summons filed on 27 October 2006 also included an application for an injunction restraining Minter Ellison, the then solicitors for the first defendant, from continuing to act for the first defendant.

27 That application was not heard until October 2008. I am satisfied by the matters raised by the plaintiff in his affidavit and submissions that that period of delay was not the fault of the plaintiff. It appears that there was a substantial delay of about one year in listing the matter and that this was not the plaintiff's responsibility. Progress of the application was also delayed by the substantial time taken by the first defendant in preparing its evidence in response to the application.

28 Judgment dismissing the application for an injunction was delivered in December 2008: Legal Practice Board v Lashansky [2008] WASC 294.

29 It appears that once that application was determined, attention returned to the other aspect of the chamber summons that I have already mentioned, relating to the undertaking as to damages. This application came before Templeman J for directions in February 2009. At the hearing before Templeman J the Legal Practice Board submitted that the relief sought by the plaintiff could not be given under the liberty to apply that had been granted earlier in the proceedings.

30 At the hearing before me, the plaintiff said that in response to this submission he filed or sent to the court a document requesting that the file in this action (CIV 1768 of 2004) be before Templeman J at the hearing of the application for an undertaking as to damages in LPD 3 of 2000. Further, the plaintiff says that that occurred.

31 I am content to assume that both of those matters occurred. However, they do not assist the plaintiff for present purposes. In particular, they do not amount to the taking of a procedural step in this action by any party to the case.

32 The application for an undertaking as to damages in LPD 3 of 2000 was heard by Templeman J on 16 March 2009. He gave his decision on 30 March 2009: Legal Practice Board v Lashansky [No 2] [2009] WASC 78. His Honour dismissed the plaintiff's application on several grounds which I would summarise as follows:

(1) the court could not, in 2009, after the event, order the Legal Practice Board to provide an undertaking as to damages in respect of the orders it obtained in 2000 [21];

(2) the application could not be brought under the liberty to apply [26];

(3) in any case, the plaintiff's substantial complaint was about the conduct of the Board and supervising solicitor subsequent to the application in respect of which it was said an undertaking should have been given. Consequently, the substance of the plaintiff's complaint would not have been caught by any undertaking [27 - 28].

33 In that last context, his Honour noted that the complaints about the conduct of the Board and its supervising solicitor were the subject of separate proceedings in this action [29].

34 In his submission before me the plaintiff emphasised the reference to this action (CIV 1768 of 2004) in his Honour's reasons. That reference does not amount to the taking of any procedural step in the action. Nor do the comments made by his Honour detract from the need for the plaintiff in this action to have progressed the proceedings with reasonable expedition, or face the risk of adverse consequences.

35 The plaintiff lodged an appeal against the decision of Templeman J in LPD 3 of 2000. In February 2010, the Court of Appeal dismissed the appeal: Lashansky v Legal Practice Board [2010] WASCA 18. The appeal was dismissed under r 43 of the Supreme Court (Court of Appeal) Rules 2005 (WA) because none of the grounds of the appeal had a reasonable prospect of succeeding and due to the appellant's (plaintiff's) failure to comply with the requirements of the rules.

36 In [25] - [27] of their reasons, Owen and Newnes JJA referred to the apparent thrust of the plaintiff's complaints, namely the conduct of the Board, its lawyers and supervising solicitor, following the appointment of the supervising solicitor. The court also referred to the plaintiff's apparent desire to avoid a multiplicity of proceedings and to the existence of other proceedings, which was evidently a reference to this action.

37 Again, those comments do not seem to me to assist the plaintiff's arguments in his present application. They do not involve any party taking any procedural step in this action. Nor do they detract from the need for the plaintiff to progress this action with reasonable expedition or face the risk of adverse consequences.

38 As I have said, this application to remove the case from the Inactive Cases List was filed on 18 June 2010.

39 There was no evidence from the plaintiff about why no step was taken in this action in the four months from the Court of Appeal decision until he filed this application on 18 June 2010.

40 That brings me to the plaintiff's first main submission.

41 The plaintiff submitted that this action had not been inactive for 12 months prior to 24 December 2009, as required under O 29A r 18A.

42 He pointed to the references to this action in the LPD 3 of 2000 proceedings in February and March 2009, and in the appeal in February 2010.

43 I do not accept the plaintiff's submission. Order 29A r 18A applies 'if no procedural step is taken in a case for 12 months by any party to the case'. In this action, no procedural step was taken by any party in 2008 or 2009. As I have said, nothing that occurred in relation to LPD 3 of 2000 amounted to the taking of a procedural step in this action. Nor does a request for the file in this action to be in court during the hearing of the application in LPD 3 of 2000 in March 2009 amount to a procedural step in this action.

44 The only court document filed after 2007 was a notice of change of solicitor filed on behalf of the first defendant. That is not a procedural step in the action for the purposes of O 29A r 18A.

45 For these reasons, in my opinion no procedural step was taken by any party in the action for more than 12 months prior to 24 December 2009. Consequently, O 29A r 18A was engaged, so that the case was taken to be inactive. That in turn meant that O 29A r 19 was engaged, so that the case was properly put on the Inactive Cases List.

46 For these reasons, I reject the plaintiff's contention that the action was not properly placed on the Inactive Cases List because the action was not inactive.

The first defendant's solicitors' letter of 16 December 2009

48 The court's letter of 24 December 2009 advising that the matter had been placed on the Inactive Cases List was preceded by a letter from Mr Ashley Macknay, solicitor for the first defendant, to the Principal Registrar. The letter was relevantly in the following terms:

I act for the Legal Practice Board in relation to [this action and another action - CIV 1574 of 2005] and for Legal Practitioners Complaints Committee in relation to [that other action].

I note that there has been no procedural step taken in over 12 months by any party in either of the above actions and raise this in the light of O 29A r 18A and O 29A r 19(1) Supreme Court Rules 1971.

In relation to CIV 1768 of 2004, the matter was partially determined on 3 November 2006 when his Honour Justice Templeman declared that Mr Lashansky had first charge over the funds paid to the liquidator and ordered that the amount of $86,215.06 be paid forthwith to Mr Lashansky, and that he be paid out-of-pocket expenses reasonably incurred in making the application. However, there has been no further action in the matter since that date.

49 The plaintiff submitted that this letter contains false statements which 'induced' the associate to put the action on the Inactive Cases List, with the consequence that the entry on the list was null or void.

50 The plaintiff points to four filed documents (numbered 47 - 50) recorded on the court file subsequent to the delivery of Templeman J's reasons on 3 November 2006. These are:

(1) the formal order made on 3 November 2006, being a document dated 6 November 2006; and

(2) three documents filed in April 2007, being an application for an interim injunction and associated documents.

51 The first is not inconsistent with what is said in the letter of 16 December 2009.

52 There is no evidence that the April 2007 documents were served on the first defendant's solicitors. That may explain why they were not referred to in the letter of 16 December 2009. In any case, even when account is taken of the documents filed in April 2007, the fact remains that by December 2009 (when the action was put on the Inactive Cases List) a period of considerably more than 12 months had elapsed since April 2007.

53 In any event, in my opinion the letter of 16 December 2009 is not significant to the proper disposition of the plaintiff's application. The primary issue is whether this action should have been put on the Inactive Cases List. That directs attention to whether O 29A r 18A was satisfied: had no procedural step been taken in the case for 12 months by any party to the case? If so, it was correctly entered in the list; if not, the entry into the list was in error. Either way, the contents of an earlier letter to the Principal Registrar are not significant.

54 As I have already found, in my opinion, the action was correctly entered in the list, in that no party had taken a procedural step in the action for more than 12 months.

55 For these reasons, I reject the plaintiff's contention that the letter of 16 December 2009, or any alleged falsity contained within it, affects the validity of the entry of the action in the Inactive Cases List.

56 In the course of oral submissions by counsel for the first defendant, the plaintiff made an application for leave to cross-examine Mr Macknay on his affidavit. After hearing submissions I refused the application, stating that I would give reasons later. My reasons for refusing the application are as follows.

57 The starting point is that leave to permit cross-examination on interlocutory applications will be exercised sparingly: Freehill Hollingdale & Page v Bandwill Pty Ltd [2000] WASCA 150 [29].

58 There is nothing in the contents of Mr Macknay's affidavit which would justify the exceptional course of permitting cross-examination. To the contrary, his affidavit merely annexes some correspondence.

59 The plaintiff submitted that he wished to cross-examine Mr Macknay on what was written in the letter of 16 December 2009. For reasons I have already given, I do not consider that the letter of 16 December 2009 is of central significance to the disposition of this application.

60 For those reasons I declined to grant leave to cross-examine.

61 A further matter that seemed to me to reinforce that conclusion is that cross-examination of Mr Macknay would inevitably have delayed the hearing of this application. The application was heard on 23 June 2010; the last day before the period of six months from 24 December 2009 expired. The plaintiff said that he wished the application to be adjourned to allow cross-examination of Mr Macknay (ts 155). In my opinion, that would have been to the detriment of the plaintiff because I do not consider that the power to order removal of the case from the Inactive Cases List endures beyond the expiry of the six continuous months referred to in O 29A r 21. Once that period expires, r 21 is self-executing and the action is taken to have been dismissed for want of prosecution. Order 3 rule 5 has no scope to operate.

62 That brings me to the plaintiff's third submission, based on the letter of 24 December 2009.

The significance of the signing of the letter of 24 December 2009 by the associate, not the Principal Registrar

63 The letter of 24 December 2009 stating that the matter had been put on the Inactive Cases List was signed by the associate, and not by the Principal Registrar. The plaintiff submitted that because of that fact, it should be inferred that it was the associate, not the Principal Registrar, who determined that no procedural step had been taken in the case for 12 months by any party to the case and, consequently, put the case on the Inactive Cases List. I am not persuaded that that inference should be drawn from the fact that the associate signed the letter on behalf of the Principal Registrar. Further, even assuming the inference were drawn, there would still be a question whether that would result in the invalidity of the putting of the case on the Inactive Cases List, or be a ground for removal.

64 The question would then arise whether in O 29A r 19, read in the context of the rules as a whole, prevents the Principal Registrar from performing the duty and function created by O 29A r 19 through an authorised agent. On the performance of a statutory function by an agent see, for example, Carltona Ltd v Commissioner of Works [1943] 2 All ER 560; O'Reilly v The Commissioner of The State Bank of Victoria [1983] HCA 47; (1983) 153 CLR 1; Re Patrick John Walker, Commissioner for Fair Trading; Ex Parte Fremantle Islamic Association Incorporated [2003] WASC 252 [25] - [30].

65 The plaintiff further submitted that the act of putting the case on the Inactive Cases List was formally defective because consideration of the court file reveals no formal order putting the case on the Inactive Cases List. In my opinion, when an action is put on the Inactive Cases List by virtue of r 18A, no formal court order is required.

66 The plaintiff also submitted that there should have been a case management conference before the action was put on the Inactive Cases List. I do not accept that submission. It was open to the plaintiff to have sought a case management conference during 2008 and 2009. In circumstances where no party had taken any procedural step in 2008 or 2009, the Principal Registrar was not required to convene a case management conference before putting the action on the Inactive Cases List under O 29A r 19.

67 That brings me to the plaintiff's application to remove the case from the Inactive Cases List, accepting that it was correctly put on the list. As I have said, the plaintiff's submissions were substantially directed to his contention that the case should never have been put on the list. He made very few submissions on why, assuming it was properly put on the list, it should be removed.

Removal from Inactive Cases List: principles

68 The first defendant's submissions identified the following statements of principle from decisions of Master Sanderson on pt 4 of O 29A:

(a) courts have generally been sympathetic in the past to a tardy litigant and have been reluctant to grant a strikeout application, but the Inactive Cases List provisions bring a new rigour to this area of practice. The court is proactive in ensuring that a case progresses with reasonable despatch, with reasonable significant and self-executing consequences for a tardy litigant: Lifelong Investments Pty Ltd v Karageorge [2008] WASC 86 [12]; and

(b) an application for removal from the Inactive Cases List should not be regarded as mechanical. Some evidence should be advanced to show that the party is committed to advancing proceedings. Ideally, a timetable should be set, perhaps backed up by a springing order: Swick Nominees Pty Ltd v Norncott Pty Ltd [2008] WASC 24 [11].

70 In the circumstances that required me to give my decision on the day of the hearing (see [61] above), I do not consider it necessary or appropriate to attempt to state the principles relevant to the provisions of pt 4 of O 29A in a comprehensive and definitive way. Rather, I propose to focus on those matters that seemed to me to be of significance for the disposition of this application.

71 The scheme of pt 4 can be summarised in general terms as follows. There are three ways that a case may come to be on the Inactive Cases List:

(1) under r 17, at a hearing before a Case Management Registrar, following issue by a Case Management Registrar of a summons to the parties to show cause why the case should not be put on the list;

(2) following an order by a judge, master or registrar making an interlocutory order that unless the interlocutory order is complied with by a stipulated date the case is to be put on the Inactive Cases List: r 18; or

(3) under r 18A, if no procedural step is taken in a case for 12 months by any party to the case the case is taken to be inactive unless a judge, master or Case Management Registrar orders otherwise.

72 Once a case is taken to be inactive under r 18A, or an order is made under r 17, or an order made under r 18 takes effect, the case becomes subject to a special regime. The only document that may be filed in relation to the case is an application for an order removing the case from the list. If the case is not removed for a period of six continuous months it is taken to be dismissed.

73 The evident scheme of pt 4 is that once a case is on the Inactive Cases List there is curial supervision of whether the case should be permitted to resume progress and, if not, after six months the action is effectively dismissed.

74 In exercising power under O 29A r 20(2) it will be relevant to inquire whether there is evidence to explain how the case came to be on the Inactive Cases List and why it should not be expected that, if it is removed from the list, it would return to the list. It will be relevant whether there is some evidence about the state of the action and how it is proposed that it will be progressed through to a trial.

75 In some of the observations of Master Sanderson on pt 4 of O 29A, there is reference to the High Court decision in The State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146, 154 and the notion that 'case management is not an end in itself'. See, for example, Lifelong Investments Pty Ltd v Karageorge [13] and Love v Griffiths [2008] WASC 168 [3]. These observations may require reconsideration in the light of the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. However, it is not necessary, for the purposes of dealing with this application, to give that question further attention.

Should this action be removed from the Inactive Cases List?

76 The plaintiff submitted that he has not been 'tardy'. In my view, the history of this action, including the absence of any application to remove the case from the Inactive Cases List until June 2010, demonstrates otherwise.

77 A number of matters must be taken into account in considering the question of whether the action should be removed from the Inactive Cases List.

78 I begin with the question of why the case came to be on the Inactive Cases List. That occurred because no procedural step was taken in the action in 2008 and 2009. The reasons for that emerge from the plaintiff's affidavit and submissions and may be summarised as follows:

(1) from October 2006 the plaintiff decided to pursue relief in LPD 3 of 2000, which he considered would mean that he did not need to pursue this action;

(2) from late 2006 he pursued his application for an injunction restraining the then solicitors for the first defendant from continuing to act;

(3) for reasons for which the plaintiff was not responsible, that application was not heard until October 2008. It was determined in December 2008;

(4) in early 2009 the plaintiff pursued his application for relief in relation to an undertaking as to damages in LPD 3 of 2000;

(5) that application was determined adversely to the plaintiff on 30 March 2009;

(6) thereafter, he pursued an appeal, which was determined adversely to him in February 2010.

79 In my opinion, there was no reasonable basis for the plaintiff's belief that his application for relief in LPD 3 of 2000 would obviate the need to progress this action. That is so for the reasons given by Templeman J and by the Court of Appeal. Nevertheless, the plaintiff's belief that his application for relief in LPD 3 of 2000 would obviate the need for this action does provide an explanation for why he did not take steps in this action up until when the Court of Appeal decision was published in February 2010.

80 There is no evidence or submissions to explain why the plaintiff has taken no steps in this action from February 2010 when the appeal was dismissed, until 18 June 2010 when he filed this application to have the case removed from the list. An application to remove the case from the Inactive Cases List is an essential step before the action can be progressed. To my mind, the plaintiff's unexplained failure to apply to have the case removed until four months later weighs in a significant way against the favourable exercise of the discretion to order removal of the case from the List.

81 Like any interlocutory application, an application for removal from the Inactive Cases List must be preceded by proper conferral. The plaintiff failed to confer before this application. In my opinion, there was no adequate justification for that. Any urgency in filing this application was of the plaintiff's own making. There is no evidence or submissions advanced to explain why he could not have commenced the process months earlier. I am satisfied that he could have done so.

82 Further, the plaintiff has provided no evidence about the present state of preparation of his case in this action or any proposal to progress the action by a programme of identified steps to be taken.

83 In his submissions in reply, the plaintiff submitted that no statement of claim was necessary in this action because it was for the first defendant to prove why the tentative findings of Templeman J in Lashansky v Legal Practice Board [2006] WASC 247 should not stand. In my opinion, that submission is no substitute for evidence of commitment to progress the action by an identified programme of steps, with a timetable, to bring the matter to a hearing.

84 In all the circumstances, taking into account the findings and observations I have made, I was not persuaded that an order for removal of the case from the Inactive Cases List should be made.

85 For the reasons I have given, on 23 June 2010 I refused the plaintiff's application to have the case removed from the Inactive Cases List. I also refused his application for leave to set aside the entry of the action into the Inactive Cases List as an irregularity.

86 I ordered that the question of costs be reserved pending the delivery of my reasons.

87 The question of costs should be determined on the papers on the following basis:

(a) within 14 days the defendants file submissions on the question of costs;

(b) within 14 days thereafter, the plaintiff file and serve his submissions on costs;

(c) within seven days thereafter, the defendants file any submissions in reply; and

(d) the question of costs be determined on the papers.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : LASHANSKY -v- LEGAL PRACTICE BOARD [No 2] [2010] WASC 159 (S)

Costs - Costs of unsuccessful application for order that the case be removed from the Inactive Cases List - Whether indemnity costs should be awarded

Defendants' application for indemnity costs unsuccessful

Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225

Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122(S); (2003) 28 WAR 95

Johnson v Johnson [No 3] [2000] HCA 48; (2000) 201 CLR 488

Lashansky v Legal Practice Board [No 2] [2010] WASC 159

MTI v SUL [No 2] [2010] WASCA 58

Smolarek v Roper [2009] WASCA 124

Unioil International Pty Ltd v Deloitte Touche Tohmatsu [No 2] (1997) 18 WAR 190

1 By chamber summons dated 18 June 2010 the plaintiff applied for orders including:

(a) an order removing the action from the Inactive Cases List; or

(b) leave to set aside the entry of the action into the Inactive Cases List as an irregularity.

2 The application was heard on 23 June 2010. I dismissed the application, stating that I would publish reasons for doing so. On 30 June 2010 I published my reasons: Lashansky v Legal Practice Board [No 2] [2010] WASC 159.

3 I directed that the question of the costs of the application be determined on the papers and that:

(a) within 14 days the defendants file submissions on the question of costs;

(b) within 14 days thereafter, the plaintiff file and serve his submissions on costs; and

(c) within seven days thereafter, the defendants file any submissions in reply.

4 The first defendant applied for a costs order in its favour, on the basis that costs follow the event, together with a special costs order that the costs be taxed on an indemnity basis.

5 In support of the application for indemnity costs, the first defendant pointed to two matters. The first was the plaintiff's unexplained delay in bringing the application. The second was the plaintiff's failure to confer prior to the initiation of the application.

6 The third defendant adopted the first defendant's submissions.

7 The first defendant's submission were dated and filed 9 July 2010.

8 On 28 July 2010 my Associate received a letter dated 27 July 2010. Although the subject matter of the letter was said to be 'delay in completing the plaintiff's submissions as to costs', the matters raised in the text of the letter were not relevant to submissions on costs. They appeared to involve some element of revisiting of the merits of the application.

9 By letter of 28 July 2010 my Associate requested advice as to when the plaintiff's submissions on costs would be provided.

10 On 4 August 2010 the plaintiff sent a letter to my Associate stating that he was still engaged in preparing his outline of submissions and an affidavit in support to dispute the facts as found by the court, and other matters. The letter concluded that the plaintiff intended to invite the defendants to abandon the judgment in their favour and agree to the reinstatement of the matter by consent.

11 By letter of 5 August 2010 my Associate wrote to the plaintiff stating that the submissions directed by the court relate solely to the question of costs, that the submissions were due on 28 July 2010 and requesting that the plaintiff's submissions be filed no later than 13 August 2010.

12 No submissions were received by 13 August 2010. By letter of that date my Associate wrote to the plaintiff stating that if no submissions were received by 4.00 pm, 20 August 2010 the court would make a decision on the papers on the question of costs in the absence of any submissions from the plaintiff.

13 On 20 August 2010 the plaintiff filed a file, containing 50 pages of submissions and 20 attached 'exhibits'. The submissions were entitled:

The plaintiff's submissions as to why the judgment delivered in Lashansky v The Legal Practice Board [No 2] [2010] WASC 159 is demonstrably wrong in that the learned Justice Beech failed in his fact-finding exercise to establish the true facts as actually existing in the matter:

Consequently the plaintiff seeks in his submissions as to costs, to expand his submissions to include submissions why Beech J should recuse himself forthwith from any further participation in the matter on the grounds of apparent or actual bias towards the plaintiff.

14 The central thrust of the submissions is captured in par 1 which states:

The Plaintiff alleges that the judgment delivered by Beech J is demonstrably wrong and cannot be sustained as being correct in fact and law.

15 The submissions do not contain any submissions on the question now for my decision - the costs of the application I dismissed on 23 June 2010.

16 The submissions include various criticisms and attacks on the decision I have already made to dismiss the application. These criticisms are not matters for me but for an appeal court.

17 Insofar as the submissions may contend that I should recuse myself from determining the question of costs, I am not satisfied that the decision I have made gives rise to any ground for me to disqualify myself from determining the question of costs. I am not persuaded that any fair-minded lay observer might reasonably apprehend that the court might not bring an impartial and unprejudiced mind to the resolution of the question of costs that I am required to decide: see Johnson v Johnson [No 3] [2000] HCA 48; (2000) 201 CLR 488, 492; Smolarek v Roper [2009] WASCA 124 [3], [120]; and MTI v SUL [No 2] [2010] WASCA 58 [36].

18 In my opinion, the ordinary rule that the costs follow the event should apply in this case. The plaintiff's application was dismissed; the plaintiff should pay the defendants' costs of this application.

19 The first and third defendants seek indemnity costs.

20 The usual costs order is that the party who succeeds in an action is awarded its costs on a party-party basis. An order for indemnity costs will be made only if there is some special or unusual feature in the case to justify departure from the ordinary practice. The court has power to make an indemnity costs order whenever justice requires it: Unioil International Pty Ltd v Deloitte Touche Tohmatsu [No 2] (1997) 18 WAR 190; Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122(S); (2003) 28 WAR 95 [8].

21 The categories of cases in which the discretion to award indemnity costs may be exercised are not closed: Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225, 233 - 234; Unioil International Pty Ltd (191).

22 Most of the situations in which indemnity costs have been awarded have involved an element of improper or unreasonable conduct on the part of the unsuccessful party or its advisers in the conduct of the case: Flotilla Nominees Pty Ltd [9]; Colgate-Palmolive Co (233 - 234). In Flotilla Nominees Pty Ltd [9] Pullin J gave some examples:

Thus, the making of allegations of fraud knowing them to be false, or the commencement of proceedings for some ulterior motive, or in wilful disregard of known facts or the established law, or the making of allegations which ought never to have been made, or the undue prolongation of a case on groundless contentions; and even an unreasonable refusal to accept an offer of compromise, may lead to indemnity costs orders. See Colgate-Palmolive v Cussons (233). The creation of false issues by tactical denials or failures to admit the facts may, in the circumstances of particular cases, lead to such an order: Unioil's case. An action commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success, may lead to such an order because such action might be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts or the clearly established law. See Fountain Selected Meats [(Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202; (1988) 81 ALR 397].

23 Generally at least, an indemnity costs order will not be made unless it is shown that some part of the costs order will not be covered by an order for party-party costs or by a special costs order: Unioil International Pty Ltd (193); Flotilla Nominees Pty Ltd [11], [24] - [26].

24 As can be seen, an order for indemnity costs is exceptional. I am not satisfied that the matters relied on by the defendants warrant the exceptional course of the award of indemnity costs.

25 Consequently, I would award costs on a party-party basis.

26 For the reasons given, I make the following order:

1. The plaintiff pay the first defendant's and the third defendants' costs of the application to be taxed if not agreed.