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[2015] WASC 417
General information, not legal advice.
Supreme Court of WA
2015-12-18
Allanson J
Original judgment source is linked above.
1 ALLANSON J: The Attorney General of Western Australia commenced these proceedings by originating motion filed on 4 October 2013, seeking orders that:
3 The application was heard on 24 April 2015, and completed on 28 August 2015. On the second day of the hearing, Mr Lashansky asked for leave to file a written submission. He was given leave to file a written submission by 25 September 2015, but did not do so.
4 On 12 February 2014, Edelman J, who was then managing this matter, made orders for substituted service of the application and supporting affidavit on Mr Lashansky.
5 On 26 March 2014, in a hearing attended by Mr Lashansky, Edelman J ordered that he file and serve any affidavits in response on or before 28 May 2014. The time for the filing of responsive affidavits was extended by order on four occasions. On the last of them, on 10 December 2014, Edelman J extended time to 16 March 2015, and ordered that the matter be listed for a one day hearing in April, May or June 2015. By letter dated 19 December 2014, the court advised the parties of a hearing on 24 April 2015.
6 Mr Lashansky did file an affidavit, dated 27 May 2014, but it was not a substantive response to the application. It was in support of a submission that the orders of Edelman J be vacated. The affidavit did, however, state that the nature of his defence to the application is that 'the allegations being levelled by me far from being vexatious are in fact true and correct' [7], and that his defence involves an attack on the competence of the judiciary and includes allegations of defeating 'the ends of justice and turning a blind eye to corruption' [10].
7 On 23 April 2015, that is the day before the hearing, Mr Lashansky filed a document with the heading, 'The Respondent's application that the date assigned for the hearing of this matter be vacated and that the matter be relisted for directions including an intended counter-application that that the present application is a gross abuse of process and directions relating to issuing subpoenas, Dietrich assistance, producing a bundle of papers for the Trial judge and other related matters'. He filed a second affidavit in support of that application to vacate. Mr Lashansky had still not filed an affidavit in response.
8 The document filed on 23 April 2015 foreshadowed four claims or actions that Mr Lashansky said he would make:
(Chapter 16 of the Criminal Code sets out offences relating to the administration of justice, including offences of judicial corruption, perjury, and conspiring to defeat justice.)
9 Mr Lashansky also referred to directions he would seek:
10 On 24 April, Mr Lashansky applied for the hearing to be vacated. For reasons I gave at the time, I refused that application and proceeded with the hearing. He did not file the foreshadowed counter application.
11 Because it could not be completed on the day set aside, the matter was adjourned part heard to 5 August 2015 for Mr Lashansky to complete his submissions.
12 On 4 August 2015, Mr Lashansky delivered a letter to the court requesting an adjournment on the grounds of ill health. He also renewed his request that he be provided with a copy of transcript from the proceedings on 24 April 2015.
13 The hearing was vacated and the matter adjourned to 21 August 2015 to be completed on oral submissions or for the programming of written submissions. Mr Lashansky requested an adjournment of that hearing also, to enable him to attend an appointment. He gave four days' notice on this occasion. The applicant did not object, and I adjourned the hearing to 28 August 2015.
14 Mr Lashansky had an associate write to the court by email regarding his difficulty in preparing for a hearing on 28 August. In effect, the email referred to problems Mr Lashansky had in accessing documents that he considered material to his defence of the application. The documents referred to were, as I understood the email, not relevant to the issues in this application, but rather were part of Mr Lashansky's continuing desire to show that matters which were decided against him were wrongly decided. And, significantly, the email did not deal with why the hearing should be adjourned at this stage when Mr Lashansky had from 26 March 2014, at the latest, to collate and present his evidence.
15 On 28 August 2015, the matter came on again for hearing. Mr Lashansky applied at the hearing that I should disqualify myself from further hearing the matter for both actual and apprehended bias. I declined to disqualify myself, and gave short reasons at the time. Mr Lashansky then said that he would make no further submissions. Soon after, however, he requested the opportunity to file a written submission within two weeks. He was allowed four weeks for the submission to be filed. No submissions were filed in that time.
16 The Vexatious Proceedings Restriction Act 2002 (WA) (2002 Act) is comparatively short, and simple in design.
institute proceedings includes
(a) in the case of civil proceedings, the taking of a step or the making of an application which may be necessary in a particular case before proceedings can be commenced against a party;
(b) in the case of proceedings before a tribunal, the taking of a step or the making of an application which may be necessary in a particular case before proceedings can be commenced before the tribunal;
(c) in the case of criminal proceedings, the commencement of a prosecution or the obtaining of a warrant for the arrest of an alleged offender; and
(d) in the case of civil or criminal proceedings, or proceedings before a tribunal, the taking of a step or the making of an application which may be necessary to commence an appeal in relation to the proceedings or to a decision or determination made in the course of the proceedings;
proceedings includes
(a) any cause, matter, action, suit, proceeding, trial, or inquiry of any kind within the jurisdiction of any court, including a court of summary jurisdiction, or a tribunal;
(b) any proceedings, including interlocutory proceedings, taken in connection with or incidental to proceedings pending before a court, including a court of summary jurisdiction, or a tribunal; and
(c) an appeal from a decision or determination, whether or not a final decision or determination, of a court, including a court of summary jurisdiction, or a tribunal;
vexatious proceedings means proceedings
(a) which are an abuse of the process of a court or a tribunal;
(b) instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose;
(c) instituted or pursued without reasonable ground; or
(d) conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose.
If a Court is satisfied that:
(a) a person has instituted or conducted vexatious proceedings (whether before or after the commencement of this Act); or
(b) it is likely that the person will institute or conduct vexatious proceedings,
the Court may make either or both of the following orders
(c) an order staying any proceedings, either as to the whole or part of the proceedings, that have been instituted by that person;
(d) an order prohibiting that person from instituting proceedings, or proceedings of a particular class, without the leave of a court or tribunal, as the case requires under section 6(1).
19 An order under s 4(1) may be made on the application of the Attorney General. The court must not make an order without hearing from the person or giving that person an opportunity to be heard: s 4(3).
20 Section 5 deals with the effect of an order on proceedings instituted in contravention of an order.
21 Section 6 provides for an application by a person, subject to an order, for leave to institute proceedings. By s 6(7), a court may not grant leave unless satisfied that:
(a) the proceedings are not vexatious proceedings; and
(b) there is a prima facie ground for the proceedings.
22 The definition of vexatious proceedings is common to similar legislation in other Australian jurisdictions: see, pt VAAA of the Federal Court of Australia Act 1976 (Cth); Vexatious Proceedings Act 2008 (NSW); Vexatious Proceedings Act 2014 (Vic); Vexatious Proceedings Act 2005 (Qld); Vexatious Proceedings Act 2006 (NT). The Western Australian Act, however, differs significantly from the statutes in other jurisdictions which commonly require that the court be satisfied that:
(a) a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b) a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian court or tribunal.
23 The 2002 Act also differs from its predecessor, the Vexatious Proceedings Restriction Act 1930 (WA), which required the court to be satisfied that a person had 'habitually and persistently and without any reasonable ground, instituted or commenced vexatious proceedings': s 3. Rather, it requires that the court first determine whether it is satisfied that Mr Lashansky has instituted or conducted vexatious proceedings or is likely to institute or conduct vexatious proceedings. If satisfied of those matters, the court must then exercise its discretion whether to make the order sought by the applicant in the originating motion, or an alternative order, such as a more limited order prohibiting the institution of proceedings of a particular class without leave of the court.
24 In the exercise of discretion, whether vexatious proceedings have been instituted or conducted frequently or persistently will generally be relevant in determining whether an order should be made and in what form.
25 In other respects, the case law from other jurisdictions is valuable due to the common definition of vexatious proceedings.
26 The term 'abuse of process', in par (a) of the definition, has an acquired legal meaning. Unless a contrary indication appears from the context, it is presumed that it is used in that sense: see Attorney-General (NSW) v Brewery Employees Union of NSW [1908] HCA 94; (1908) 6 CLR 469, 531; Barker v The Queen [1983] HCA 18; (1983) 153 CLR 338, 341, 356. The 2002 Act discloses no contrary intention.
27 There are many authorities stating the principles to be applied in determining whether proceedings are properly described as an abuse. The authorities support the following general propositions:
(a) a court's processes being invoked for an illegitimate or collateral purpose;
(b) the use of a court's procedures being unjustifiably oppressive to a party; or
(c) the use of a court's procedures bringing the administration of justice into disrepute.
See Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251, 286 (McHugh J); Batistatos [15]; PNJ [3]; Moti v The Queen [2011] HCA 50; (2011) 86 ALJR 117 [10] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).
28 Paragraphs (b) and (d) of the definition of vexatious proceedings require consideration of 'purpose'. In Viavattene v Attorney General (NSW) [2015] NSWCA 44, Basten JA questioned whether pars (b) and (d) of the definition of vexatious proceedings would be satisfied by objectively demonstrated effects and consequences, absent any subjective improper purpose [19]. The construction apparently favoured by Basten JA (the other members of the court, Beazley P and Leeming JA, expressly not deciding) is not consistent with the statements of single judges in this State, at least with regard to par (d): see Principal Registrar of the Supreme Court v Chin [2012] WASC 7 [138]; Attorney General v Shaw [2004] WASC 280 [22]; Granich Partners v Yap [2003] WASC 206 [28]. On that state of the authorities, I believe that I should follow the decisions of single judges in this State. That is, subjective purpose is essential to par (b) of the definition, but par (d) may be satisfied without a subjective wrongful purpose.
29 The question of subjective purpose in par (d) may be of little practical consequence. Proceedings which are conducted so as to harass or annoy, or cause delay or detriment may, if sufficiently serious, be an abuse of process even without a subjective wrongful purpose.
30 Finally, par (c) requires consideration of whether proceedings were instituted or pursued without reasonable grounds. These may include claims with unintelligible pleadings, misconceived or hopeless appeals, appeals which lack any legal basis, and applications or proceedings which have absolutely no prospect of success: Commonwealth Bank of Australia v Bride [2004] WASC 177 [127].
31 I have had regard to the occasions when the court has made observations in its reasons regarding the institution or conduct of proceedings before it. Whether earlier proceedings were an abuse of process or instituted without reasonable cause may be apparent on a reading of the reasons and orders of the court: see Kay v Attorney General [2000] VSCA 176; (2000) 2 VR 436; AttorneyGeneral for the State of Victoria v Weston [2004] VSC 314 [18]. Findings by the court that evidence or submissions were irrelevant may go towards proof that proceedings were pursued without relevant ground, or were conducted so as to cause delay or detriment. A successful strike out application may reveal that an application was instituted without reasonable grounds, although that is not necessarily so: Attorney General v Collier [2001] NZAR 137. And see generally: Attorney General for Western Australia v Tey [2015] WASC 146 [15] [18] (Le Miere J).
32 The 2002 Act provides that before making an order, the court shall hear from the party sought to be restrained or give him the opportunity to be heard: s 4(3). The right to be heard may require the court to adjourn a hearing to allow a person to attend, and to ensure that he has access to material necessary to make his response. Mr Lashansky requested that he be provided with transcript of the first day of the hearing. He said that he could not obtain transcript of the earlier hearing because of the cost.
33 In this case, I do not believe that the absence of transcript denies Mr Lashansky the opportunity to be heard. The Attorney General relies solely on affidavit evidence, which Mr Lashansky has had since 2014, and filed comprehensive written submissions in October 2014. The oral submissions made on 24 April 2015 were, in effect, illustrating the written submissions by reference to the court documents attached to the affidavits. Mr Lashansky was present at the hearing for all but about 15 minutes when he chose to leave the courtroom. I am satisfied that neither s 4(3) nor principles of natural justice require that Mr Lashansky have transcript of the first day of the hearing to enable him to exercise his right to be heard.
34 Mr Lashansky made only limited submissions. He failed throughout the proceedings to file written submissions. He made some oral submissions on the first day of the hearing. On the last day of the trial, he chose to make no further submissions. He was given the opportunity to be heard but did not take it.
35 The applicant submits that the court should find that Mr Lashansky has repeatedly conducted vexatious proceedings. Specifically, the applicant submits:
(1) Mr Lashansky has repeatedly instituted or pursued proceedings without reasonable grounds or that were an abuse of process.
(2) Having regard to the nature and extent of the proceedings and the manner in which Mr Lashansky conducted them, the inference should be drawn that he has instituted or conducted them in such a manner as to harass or annoy, cause delay or detriment, or achieve some other wrongful purpose. In particular, the applicant points to:
(d) scandalous and vexatious allegations of judicial and legal impropriety with no substance.
36 These complaints are amply supported by the history of Mr Lashansky's litigation in this court, which I set out below. Looking at Mr Lashansky's conduct in the many proceedings over more than 10 years, there are many recurring issues. He has repeatedly failed to comply with time limits; alleged conspiracies against him in the legal profession, including the judiciary; repeatedly applied to restrain practitioners acting against him; applied to take punitive action against practitioners who have appeared against him; filed many volumes of irrelevant and often argumentative affidavits; brought applications and appeals with no reasonable ground; and attempted to litigate matters which have, in substance, been determined in earlier proceedings.
37 There are many specific examples of proceedings which can be characterised as vexatious. It is also relevant to consider the effect of the proceedings overall, particularly where the same persons have been parties to numerous different actions. Conduct which is repeated on this scale may, and in my opinion did, become seriously and unfairly burdensome. And where such conduct is repeated, an inference of wrongful purpose may more readily be drawn.
38 The legal profession in Western Australia was, until 2004, regulated under the Legal Practitioners Act 1893 (WA). The Legal Practice Board (the Board) was constituted under that Act and invested with powers and functions for the purposes of the Act. The 1893 Act also provided for a Legal Practitioners Complaints Committee (the Complaints Committee), the functions of which included to supervise the conduct of practitioners and the practice of the law; the Law Complaints Officer; and the Legal Practitioners Disciplinary Tribunal (the Disciplinary Tribunal).
39 Mr Lashansky was a legal practitioner until his suspension from practice on 27 November 2000. In 2000, the Disciplinary Tribunal made findings against him. In January 2001, the Complaints Committee moved in the Full Court for Mr Lashansky to be removed from the Roll of Practitioners. Mr Lashansky was suspended from practice until the application to the Full Court was determined. That motion was not finally determined until 5 September 2007, when the Full Court ordered that Mr Lashansky be struck off the Roll of Practitioners.
40 References to three proceedings in which Mr Lashansky acted before his suspension will recur in any consideration of the history leading to this application.
41 First, in 1997, Mr Lashansky commenced proceedings in the Federal Court on behalf of a group of tenants against the owners and managing agents of the Colonnade Shopping Centre (the Colonnade action). Realmark Pty Ltd was the leasing agent for the centre and was the second respondent in the proceedings. The firm of Minter Ellison acted for Realmark in the Colonnade action.
42 Second, Mr Lashansky acted for a builder, RL Wright Pty Ltd, in a lengthy arbitration between that company and Alister Russell Walker in 1997 and 1998. RL Wright was successful. It went into liquidation shortly before Mr Lashansky's suspension from practice. The files relating to RL Wright were among those seized by the supervising solicitor appointed to Mr Lashansky's practice. The supervising solicitor, Mr Bogue, subsequently gave the files to the liquidator of RL Wright.
43 Third, Mr Lashansky acted for a time for members of the Ridout family and entities associated with them in proceedings brought by the Commonwealth Bank of Australia. Mr Lashansky did not act in the trial (which was heard in 1999) but represented the appellants when an appeal was instituted in April 2000: see Ridout Nominees Pty Ltd v Commonwealth Bank of Australia [2003] WASCA 158 (Ridout). He had been suspended before the appeal was heard.
44 This application under the 2002 Act relies upon various actions between Mr Lashansky and the Board, the Complaints Committee, the Law Complaints Officer, and officers or employees of those bodies. The applicant relies upon the conduct of Mr Lashansky in 11 matters. Nine of the matters were commenced by Mr Lashansky, and six of them are appeals:
45 In an affidavit filed on 3 December 2007 in LPD 3 of 2000, Mr Lashansky refers to another action he brought against the Complaints Committee: CIV 2465 of 2005. There appears to be no other reference to that matter in the papers.
46 The applicant relies upon two affidavits of Mr Beetham to which he has attached the documents - pleadings, notices of appeal, affidavits - filed in the several proceedings in this court. The affidavit filed in support of the application is 9,178 pages, all but 44 of which are attachments. On 1 October 2014, the applicant filed a supplementary affidavit, another 285 pages, correcting and adding to some of the earlier material. The attachments are court documents, including transcript, from proceedings in which Mr Lashansky has been a party. In some cases, the applicant has included the transcript of earlier hearings. Despite the passage of time and the volume of material, Mr Lashansky demonstrated detailed knowledge of a large part of it.
48 Because of the number of actions, many of which were running concurrently, it is less confusing to set out relevant proceedings in each action separately, rather than to attempt to deal with all matters in chronological order. Where proceedings resulted in an appeal, I deal with the appeal immediately after the primary action.
The proceedings before the Disciplinary Tribunal
49 In October 1998, the Board, acting under the Legal Practitioners Act, engaged a Trust Account Inspector to investigate the records of Mr Lashansky. Arising out of that inspection, the Complaints Committee was asked to consider the matter.
50 The Complaints Committee initiated proceedings against Mr Lashansky before the Disciplinary Tribunal on seven separately numbered references. The Disciplinary Tribunal heard the various references together in October and November 2000.
51 It is unnecessary in these proceedings to set out in detail the findings of the Disciplinary Tribunal on each reference. In summary, it found that Mr Lashansky had failed to comply with the Act and the Professional Conduct Rules, and his conduct amounted to unprofessional conduct. The Disciplinary Tribunal found that, notwithstanding the support he received from some of his clients, Mr Lashansky's apparent lack of understanding of his obligations as a solicitor made him unfit to practice.
52 The Disciplinary Tribunal had power to suspend a practitioner for up to two years. It determined that its powers were not adequate to deal with Mr Lashansky, and that it should make and transmit a report on the references to the Full Court. Pending the determination of the Full Court, the Disciplinary Tribunal suspended Mr Lashansky from practice.
53 An appeal lay to the Full Court against any finding or order made by the Disciplinary Tribunal: Legal Practitioners Act s 29B. Otherwise, a report about a practitioner was taken to be conclusive as to all facts and findings in it: s 30. The court could, without further evidence, fine, suspend from practice, or strike the practitioner off the roll. Much of the difficulty in the following proceedings appears to stem from the failure of Mr Lashansky to either understand the effect of s 30, or to conduct proceedings within the constraints it imposed.
The proceedings in the Supreme Court LPD 3 of 2000
54 The Disciplinary Tribunal made its determination on 27 November 2000.
55 Under s 58B of the Legal Practitioners Act, a judge may restrain dealings in all or any of the bank accounts of a practitioner who has been suspended from practising. The order may be made subject to conditions. It may be revoked on the application of the Board or the practitioner or any person interested.
56 On 29 November 2000, the Board applied, ex parte, for an order under s 58B restraining dealings with Mr Lashansky's trust account and general account until further order. McKechnie J granted the order.
57 On the same day, the Board appointed a supervising solicitor under s 58D.
58 The order made by McKechnie J was varied on 25 May 2001, and was dissolved by consent, with liberty to apply, on 20 December 2001.
59 Despite the limited scope of the proceedings in LPD 3 of 2000, and the dissolving of the order, Mr Lashansky made several further applications in this action, the last of them in 2009.
60 On 12 March 2004, he filed an application for various orders including:
(1) A declaration that he was beneficially entitled to the benefit of certain costs orders made in the arbitration in December 1998 in favour of his client, RL Wright Pty Ltd, against the estate of Mr Walker.
(2) An order to enable him to pursue the practitioners involved in the institution of defamation proceedings by Mr Walker, for the payment of costs and/or damages on the basis that institution of the proceedings was a gross abuse of process.
(3) An order requiring the Board to provide documents to a solicitor acting for Mr Lashansky to enable him to obtain legal fees and disbursements owing.
(4) Failing agreement by the executors of the estate of Mr Walker to pay outstanding fees due to Mr Lashansky, and/or the payment by them of an amount not less than $100,000, an order directing the Board, or the Legal Aid Board of Western Australia to provide funding from time to time to enable Mr Lashansky to be properly represented, including all costs associated with engaging senior counsel from the eastern states, and travel and accommodation to several witnesses who were overseas and interstate.
(5) An order that he be given leave to pursue criminal proceedings on indictment against various individuals employed by the Board and/or the Complaints Committee and/or the Law Complaints Officer in relation to the unlawful and improper destruction of practitioner liens that he held over his files.
61 The relief sought in the application was unrelated to anything still to be determined in LPD 3 of 2000, and included orders affecting the interests of persons who were not parties to that action.
62 Templeman J was managing the various matters in the court in which Mr Lashansky was a party. On 5 April 2004, Templeman J made directions on the application in LPD 3 of 2000, together with applications in FUL 7 of 2001 and LPD 1 of 2001. His Honour adjourned Mr Lashansky's motion for a declaration as to his beneficial interest in unpaid money to a special appointment. The material before me does not show whether the special appointment was ever listed. It may have been overtaken by events in other actions. In particular, in June 2004, Mr Lashansky commenced action by writ against the Board and the liquidator of RL Wright Pty Ltd (CIV 1768 of 2004). The relief sought in that action overlaps the orders sought in the application of 12 March 2004, and Templeman J ultimately made orders in that action regarding Mr Lashansky's interest in money held by the liquidator.
63 Mr Lashansky's appeal against the findings of the Disciplinary Tribunal was dismissed on 4 December 2002. On 16 November 2005, the Court of Appeal dismissed an application to reinstate his appeal. These decisions are dealt with below. On 5 September 2006, the High Court refused special leave to appeal. For present purposes, it is the timing of the decisions that is relevant. From 5 September 2006 at the latest, the avenue of appeal from the findings of the Disciplinary Tribunal had been exhausted.
64 On 27 October 2006, Mr Lashansky filed another chamber summons in LPD 3 of 2000. The stimulus for the application was the decision of the High Court in July 2006 in Mansfield v Director of Public Prosecutions for Western Australia [2006] HCA 38; (2006) 226 CLR 486, where the High Court held that the Supreme Court had power to require the applicant for a freezing order under the Criminal Property Confiscation Act 2000 (WA) to give an undertaking as to damages.
(1) the Board file an undertaking as to damages in the usual form in relation to the orders made by McKechnie J on 29 November 2000;
(2) the matter of compensation due to him under that undertaking be assessed.
66 Mr Lashansky also applied for declarations that that the orders made by McKechnie J, and the subsequent appointment of a supervising solicitor were obtained or done 'irregularly and illegally and unlawfully and wrongfully'; and that the entry and seizure of his property on 13 December 2000 and 28 November 2002 was illegal and irregular. He sought orders for the Board to deliver up all material seized and, in the event it was not in possession of any of the material, that the Board provide details of what had been done with it; and, in the event that the Board was unable to deliver up the material seized, that he be entitled to damages.
67 The relief sought in the summons was patently outside the proper scope of an application under the order for liberty to apply on dissolution of the order under s 58B of the Legal Practitioners Act. The order under s 58B was a precondition to the exercise of the Board's power under s 58D to appoint a supervising solicitor. The appointment of the supervising solicitor was not, however, part of the order made by the court. If the question of the entry and seizure of property was to be determined, it required a separate and properly constituted action.
68 Mr Lashansky also sought orders that the firm Minter Ellison be restrained from continuing to represent the Board and the Complaints Committee; and that his suspension from practice be lifted with immediate effect. The bringing of applications to restrain solicitors or counsel acting against him is a recurring feature in these various actions. For example, Mr Lashansky filed applications to restrain Minter Ellison on 6 December 2001 (in FUL 7 of 2001); on 14 November 2003 and 5 October 2004 (in LPD 1 of 2001); and on 5 April 2007 (in CIV 1768 of 2004).
69 On 5 September 2007 (in LPD 1 of 2001), the Full Court ordered that Mr Lashansky be struck off the Roll of Practitioners.
70 On 13 November 2007, Mr Lashansky filed a further affidavit in LPD 3 of 2000. The affidavit was said to be filed in support of the chamber summons filed on 26 October 2006 (it was dated 26 October but actually filed on 27 October 2006). In it, he sought leave to refer to an affidavit sworn on 12 January 2005 in another action (CIV 1768 of 2004) and to the remainder of the material on the court file in that other action. He also attached a copy of an affidavit sworn 5 October 2006 in CIV 1768 of 2004, and a further affidavit, sworn 1 November 2007 in yet another action (CIV 2465 of 2005).
71 On 3 December 2007, Mr Lashansky filed a further affidavit of 749 pages in LPD 3 of 2000. The affidavit addressed several topics. It set out allegations, developed at some length, about conduct of the Board, the Complaints Committee, the Law Complaints Officer, the Legal Contribution Trust, the supervising solicitor, and, in particular, Minter Ellison.
72 The affidavit was filed in an application where Mr Lashansky sought to restrain Minter Ellison from acting, so it may be accepted that at least some of those matters were relevant to the application. Separating the relevant parts from the wide ranging narrative, including sometimes quite personal allegations made against various individuals, is almost impossible. The filing of material of this nature could only delay the determination of the proceedings. The extent and nature of the allegations against various individuals satisfies me it was, at least in part, filed for the purpose to harass or annoy those people.
73 The burden of dealing with material of this nature is multiplied because the affidavit attached 11 affidavits sworn in other actions, as well as submissions and transcript in other proceedings. Much of this material was of doubtful relevance in the proceedings in which it was originally filed, and of no relevance to any application in LPD 3 of 2000. For example, one of those affidavits (originally prepared in CIV 1768 of 2004) attaches lengthy correspondence from Mr Lashansky in 2005 to the Hon Dr Geoff Gallop (then Premier of Western Australia) regarding the feasibility of a water pipeline from the Kimberley Region to Perth, a newspaper article on the first home buyers' scheme, and material relating to proceedings by consumer affairs authorities against a 'model consultant' in 1998.
74 The affidavit also contained assertions regarding matters that had been already determined against Mr Lashansky. In a section headed 'The Suppression of True Testimony and the Cover-up by all of the Legal Practice Board, the Legal Practitioners Complaints Committee, the Law Complaints Officer and the Legal Contribution Trust and Minter Ellison', Mr Lashansky makes a series of serious allegations of suppression of true testimony by the Complaints Committee, perjury by a witness before the Disciplinary Tribunal, and corrupt receipt of a payment from the Legal Contribution Trust.
75 Later, the affidavit includes a section on claimed factual errors in the decision of the Full Court in December 2002, dismissing his appeal from the findings of the Disciplinary Tribunal, and submissions on why the later decisions leading to the order that Mr Lashansky be struck from the Roll of Practitioners should not be allowed to stand. Those matters had been determined by the court - and in one case the avenue of appeal to the High Court had been exhausted. The use of a chamber summons in LPD 3 of 2000 to raise these matters was to conduct vexatious proceedings within pars (a) and (d) of the definition in the 2002 Act.
76 Although they are a small part of a lengthy affidavit, Mr Lashansky returned to matters relating to salinity, greenhouse gas and carbon capture. Those issues were irrelevant to the proceedings. They were, however, sufficiently limited in that they were unlikely on this occasion to cause significant delay.
77 On 20 May 2008, Minter Ellison filed a short affidavit in response to the claim that they had a conflict of interest that should preclude them from acting. The affidavit was limited to two issues: the alleged association between Minter Ellison and Mr Bogue, the supervising solicitor appointed by the Board in 2000, in the period 1995 to 1998; and whether Minter Ellison had provided advice to either Mr Bogue or the Complaints Committee in relation to his entry onto Mr Lashansky's premises.
78 Mr Lashansky responded with an affidavit, filed 3 October 2008. It is 431 pages long. The body of the affidavit is 215 paragraphs. Much of the first half of it is argumentative, containing many (often repeated) accusations against people connected with the Board and its legal representatives. Mr Lashansky continued his challenge to Minter Ellison acting for the Board in matters concerning him because they had acted for one of the defendants in the Colonnade action.
79 The second half of the affidavit discusses, in some detail, matters relating to such topics as carbon capture, climate change, and salinity. Many of the exhibits are newspaper articles and other materials related to these topics. The apparent connection with LPD 3 of 2000 was that files relating to these matters were among the files seized by the supervising solicitor. This material was, however, irrelevant to any matter to be determined in LPD 3 of 2000. Its inclusion was partly responsible for an affidavit of excessive length.
80 The affidavit also included an affidavit prepared by Mr Lashansky in CIV 1437 of 2008 (defamation proceedings against an officer of the Board) and apparently prepared for the purpose of an application that the judge dealing with that matter should recuse himself for bias. It also included material (78 pages, on a range of topics) sent by Mr Lashansky to the incoming Attorney General in 2001. All of that material was completely irrelevant to the application then before the court.
81 The filing of such a large body of argumentative and patently irrelevant material is vexatious within the terms of par (d) of the definition. It is also particularly burdensome to the other parties to the proceedings where the material includes so many and varied attacks on their personal and professional integrity.
82 On 17 December 2008, Templeman J dismissed the application to restrain Minter Ellison from acting for the Board: Lashansky v Legal Practice Board [2008] WASC 294. Templeman J held that, even if Minter Ellison ought not to have acted for the Board in 2000 (as to which his Honour did not express any concluded view), it did not follow that they should be restrained from acting for the Board in its defence of Mr Lashansky's outstanding claims some seven or eight years later [52]. The decision deals comprehensively with each other complaint made by Mr Lashansky about the continued participation of Minter Ellison.
83 On 23 January 2009, Mr Lashansky filed a further minute of proposed directions under the chamber summons.
84 On 16 March 2009, Templeman J heard the application by Mr Lashansky that the Board provide a retrospective undertaking as to damages in respect of a freezing order that McKechnie J had granted on 29 November 2000. Templeman J dismissed the application on three bases: first, that the Board could not now be required to provide an undertaking as to damages; second, it was not open to apply for that relief under the liberty to apply provision following the order discharging the injunction; and third, the undertaking would not provide a basis for obtaining the compensation Mr Lashansky sought from the Board: Legal Practice Board v Lashansky [No 2] [2009] WASC 78.
85 On 3 April 2009, Mr Lashansky filed an appeal from the decision of Templeman J (CACV 38 of 2009). Grounds of appeal were filed on 8 May 2009. They run for 39 paragraphs, largely because they contain a mix of argument, submission and evidence.
86 Submissions filed in support are wide ranging in their complaints, and largely irrelevant to the matter under appeal. For example, the submissions deal at length with material before the Disciplinary Tribunal; an allegation that the Tribunal subjected him to pressure to change his plea; the failure of the Full Court to correctly determine his appeal; the failure of Wheeler J, a member of the Full Court (in FUL 7 of 2001), to recuse herself in April 2007; and the proportionality of the punishment imposed on him by the Full Court. None of those matters could be challenged in the appeal.
87 The orders sought included those sought before Templeman J, and also an order for the immediate reinstatement of Mr Lashansky's name on the Roll of Practitioners and for the Board to 'take steps to publicise its failings in this manner with the same level of publicity that has attended the Appellant's lack of previous success in the Supreme Court of Western Australia'. Again, that is a challenge to matters that had been finally decided.
88 On 28 May 2009, the registrar gave Mr Lashansky leave to file an amended appellant's case by 1 July 2009. He did not file an amended case or take any further step in the appeal. On 8 January 2010, the registrar sent notice advising the appeal had been listed on 22 January 2010 for Mr Lashansky to show cause why it should not be dismissed. That listing was adjourned to 5 February following advice from Mr Lashansky that he was in South Africa.
89 Mr Lashansky faxed an affidavit, sworn 21 January 2010, to the court. In part it deals with matters relating to the proceedings in the court, but also ranges into agricultural technology, climate change and water supply pipelines. Mr Lashansky had consistently complained that papers relating to his involvement in these matters had been among those seized when the supervising solicitor was appointed following his suspension. Even if that was so, in 2010, on an application in CACV 38 of 2009, this material was patently irrelevant.
90 On 5 February 2010, the appeal was heard and dismissed: Lashansky v Legal Practice Board [2010] WASCA 18. The Court of Appeal found that there had been material non-compliance with r 32 of the Supreme Court (Court of Appeal) Rules 2005 (WA). The court identified deficiencies in the appellant's case, expressing the view that it was so seriously deficient as to not constitute an appellant's case at all. The deficiencies included:
(a) the grounds of appeal are not succinct statements of the areas of challenge and do not identify whether the impugned findings are errors of law or fact;
(b) many of the paragraphs in the grounds of appeal are argumentative submissions - they are not grounds of appeal at all;
(c) the grounds and the submission go well beyond matters raised in the chamber summons and decision in the primary proceedings the subject of this appeal; and
(d) the 'orders wanted' include setting aside orders made in a separate application and seeking declarations that relate to other causes of action the appellant says he has but which are not the subject of the primary proceedings [19].
91 The court continued that Mr Lashansky had taken no steps to remedy deficiencies after being advised of them, or to convince the court that the material was in order and to prosecute the appeal accordingly [21].
In our view there has been non-compliance with r 32 of the Supreme Court (Court of Appeal) Rules 2005. The non-compliance is material. In addition, it is not possible to identify proper grounds of appeal that would have a reasonable prospect of success in a substantive hearing of this appeal. The appellant could not obtain, in this appeal, the relief that he seeks. Courts are reluctant to bring litigation to a summary end and this is not a decision to which we have come lightly. But for all of these reasons, we believe the proper course is to dismiss this appeal [29].
93 Thus, on 5 February 2010, the proceedings arising out of an order made on 29 November 2000 and discharged on 20 December 2001, were finally completed.
94 On the reasons of the court in dismissing the appeal, particularly at [19] and [29], the appeal was pursued without reasonable ground and was a vexatious proceeding under par (c) of the definition. While the Court of Appeal did not make any finding to that effect, I am satisfied that the appeal was an abuse of process to the extent it sought to challenge earlier decisions leading to the decision to strike Mr Lashansky off the Roll of Practitioners, or to re-instate him. Those matters had been conclusively determined in other proceedings.
95 On 11 January 2001, the Complaints Committee filed an originating motion, seeking that Mr Lashansky be struck off the Roll of Practitioners or otherwise dealt with. He was then, by the decision of the Disciplinary Tribunal, suspended from practice pending the determination of the court.
96 Under s 30 of the Legal Practitioners Act:
(1) If the Disciplinary Tribunal under section 29A(2)(a) makes and transmits a report to the Full Court, such report shall be taken, subject to section 29B, to be conclusive as to all facts and findings therein mentioned or contained.
(2) The Court may, upon motion and upon reading such report, and without any further evidence, fine, suspend from practice, or strike off the roll such practitioner or make any order which the Disciplinary Tribunal might make under section 29A(3), and make such order as to the payment of costs by that practitioner as the Court may think fit.
Section 29B provides for an appeal from any finding or order made by the Tribunal. The failure of Mr Lashansky to appreciate the effect of s 30 infects his conduct of the proceedings in this action.
98 The originating motion in LPD 1 of 2001 was listed and adjourned on 25 July 2003. Leave was granted to amend the notice of originating motion on 31 October 2003.
99 On 28 November 2003, Mr Lashansky filed a motion for 'recusal and other ancillary relief' in LPD 1 of 2001, in which he sought orders that a Full Court be appointed to hear the matter comprised of judges other than current or past members of the Supreme Court of Western Australia, a directions hearing before a Full Court so comprised, and other orders.
100 It is not easy to categorise the other matters proposed to be dealt with in the directions hearing. Broadly, they relate to applications by Mr Lashansky to adduce evidence regarding matters to do with the hearing before the Disciplinary Tribunal; the conduct of an employee of the Board; the conduct of the Board on matters relating to the supervision of his practice following his suspension; and evidentiary matters, including discovery.
(1) for leave to introduce a variety of evidence (including evidence 'relating to the lack of ethics prevalent in the Legal profession generally in Western Australia');
(2) for the discovery of material relating to press releases 'distributed by the legal authorities in Western Australia';
(3) for leave to include several volumes of newspaper articles relating to sentences handed down by the Disciplinary Tribunal;
(4) to restrain Minter Ellison from acting for the Disciplinary Tribunal and also in various matters involving his former clients;
(5) a Mareva injunction against the assets of individual partners of Minter Ellison pending the outcome of anticipated representative action against that firm and 'the legal authorities' on behalf of clients of Mr Lashansky's practice;
(6) leave to institute private prosecutions against a witness before the Disciplinary Tribunal, the persons who prepared the case and led evidence before the Disciplinary Tribunal, the Chairman of the Disciplinary Tribunal, and an employee of the Board;
(7) payment to him by various persons (not parties to LPD 1 of 2001) of costs and other sums.
102 In December 2003 (the day on the date stamp is unclear), Mr Lashansky filed an affidavit. In it, he asserted his belief that the decision of the Disciplinary Tribunal was not properly reached, the proceedings were not conducted according to law, and the evidence against him was illegally obtained and, in one instance, perjured. He also stated that there was a deliberate attempt to destroy his practice. Exhibits to the affidavit included affidavits by four other deponents, and an extract from The Mickelberg Stitch.
103 The originating motion to strike Mr Lashansky from the roll was brought on for hearing on 5 December 2003, together with his motion that the members of the court should recuse themselves. Both motions were adjourned sine die. The court also ordered that Mr Lashansky be at liberty to apply to the Full Court by 29 February 2004 to reopen his appeal against the findings of the Disciplinary Tribunal in FUL 7 of 2001.
104 On 18 February 2004, Mr Lashansky filed a motion for directions, an extension of time to bring the application for reinstatement, and other 'ancillary relief'. Included in the motion was an application to have the names of five practitioners removed forthwith from the Roll of Practitioners on grounds of alleged misconduct, including allowing perjured testimony, withholding documents, wilfully sabotaging Mr Lashansky's attempt to have his appeal entered for hearing, causing biased and selective reporting to be published to lower his standing in the eyes of the judicial authorities and others, and 'corruptly subverting' the disciplinary powers and functions assigned to them. The practitioners were two barristers and a solicitor who had appeared in proceedings against Mr Lashansky before the Disciplinary Tribunal and the court, the Law Complaints Officer, and an employee of the Complaints Committee.
105 Mr Lashansky also sought summary discipline of another employee of the Complaints Committee, and the Chairman of the Board. He sought an order that the then Attorney General be declared unfit to hold office by reason of lack of necessary qualifications and conduct that rendered him unfit.
106 Mr Lashansky also sought (by orders in the motion) to use these proceedings to seek payment of fees from former clients.
107 On 12 March 2004, Mr Lashansky filed a further motion. Again he sought orders to have the five named practitioners removed from the Roll of Practitioners, with alternative orders for the application to be removed to the High Court for determination, having regard to the Commonwealth of Australia's international obligations pursuant to the International Covenant on Civil and Political Rights. He renewed other aspects of the earlier application, including the application to have the Attorney General declared unfit.
108 The motion dated 12 March 2004 was dismissed on 5 April 2004. There are no published reasons available for the decision - I infer they were given orally. The decision was subject to appeal in FUL 48 of 2004 (as an appeal in FUL 7 of 2001, which was being managed together with LPD 1 of 2001). On appeal, the court referred to the reasons given by Templeman J. In effect, his Honour determined that he was exercising jurisdiction under the Supreme Court Act 1935 (WA) s 61 to make directions for the Full Court hearing. His Honour did not consider that he had jurisdiction to make the orders in relation to the practitioners or the Attorney General, and was not prepared to send those motions forward to the Full Court dealing with the appeal. His Honour said that the procedure used by Mr Lashansky was entirely inappropriate when the Legal Practitioners Act laid down the procedures for bringing such complaints. Those comments were approved on appeal.
109 I am satisfied that Mr Lashansky instituted the application against the practitioners to harass or annoy or cause detriment to those persons who had acted in some way against him. It was itself vexatious under par (b). It was also part of a wider and repeated pattern by Mr Lashansky of seeking to restrain, prosecute for contempt, or obtain leave to criminally prosecute practitioners who appeared against him or otherwise opposed him over this period.
110 On 20 September 2004, Mr Lashansky filed several affidavits made by persons for whom he had appeared before he was suspended from practice, and an affidavit by his former legal practice administrator. The content of these affidavits was irrelevant in the proceedings, due to the effect of s 30 of the Legal Practitioners Act.
111 On 5 October 2004, Mr Lashansky filed a further motion for directions. In it, he sought orders related to the filing and service of a contemnor summons to have the solicitor appearing for the Complaints Committee and others imprisoned until their contempt was purged.
112 Mr Lashansky sought orders restraining Minter Ellison from acting in any matters involving him. He sought orders for a special appointment in the Full Court to order the production of 'the copious additional documentation' that the Complaints Committee and others had deliberately failed to provide, including complaints he had made against three other practitioners. Finally, he sought a declaration that the conduct of various persons, including the Law Complaints Officer, the Complaints Committee, the Trust Account Inspector, and the Disciplinary Tribunal constituted illegal and wrongful conduct. He gave notice that he intended to rely on 38 affidavits, filed in these and other proceedings and identified from a print out of court documents, as well as 'various transcripts of Court Proceedings' in four other matters and the transcript before the Disciplinary Tribunal.
113 On 18 November 2004, Mr Lashansky filed an amended motion for directions in which he included directions necessary to program the progress of related matters.
114 On 11 April 2007, Mr Lashansky filed a motion in the Court of Appeal. The document runs to 21 pages, plus several attachments, and seeks 42 orders on a range of issues. Some of them relate to orders previously sought. New matters include the restraint of senior counsel then instructed by the Complaints Committee, Ronald John Davies QC, from participating in any further matters involving Mr Lashansky 'on the grounds of his past wrongful conduct', apparently in completely unrelated matters. He applied for orders for subpoenas to an employee of the Complaints Committee and the Law Complaints Officer to produce evidence relating to proceedings regarding other practitioners (also in unrelated matters); and an order that the State of Western Australia show cause why an independent inquiry should not be established to investigate matters including 'lack of competence on the part of the justice system in Western Australia that has given rise to numerous travesties of justice' and 'allegations of outright corruption within the Legal Profession in Western Australia'.
115 Mr Lashansky moved for orders in which he sought to open or reopen various factual matters regarding the proceedings before the Disciplinary Tribunal, and matters relating to those who had given evidence against him. He requested an order that the motion by the Complaints Committee be permanently stayed until he was provided with legal aid in the form of Queen's Counsel and/or his own claims for damages has been determined.
116 Much of the content of this motion proceeds from a failure to appreciate that the report of the Disciplinary Tribunal was taken to be conclusive as to all facts and findings in the proceedings to remove his name from the roll. Mr Lashansky's appeal against those findings had, by 2007, been dismissed.
117 The motion was accompanied by an affidavit, in which Mr Lashansky referred to, and attached documents relating to, the prosecution of members of the Mickelberg family, as part of his application to restrain senior counsel for the Complaints Committee. He also included material relating to the case of Andrew Mallard, apparently in support of the contention that the justices of this court would be unable to bring an impartial mind to the proceedings against him. The flavour of the balance of the affidavit can be gleaned from some of the headings of various sections: 'The Previous Involvement of Current Justices of the Supreme Court of Western Australia in Various Matters'; 'The Refusal by the Justices of the Supreme Court to Pay Any Proper Weight to the Probability That Internal Shortcomings within the Supreme Court Administration and the Statutory Emanations of the Legal Profession in Western Australia Contributed to the Unfortunate Situation in Which I Find Myself'; 'Minter Ellison and Their Own Inability to Recognise Conflicts of Interest and to Treat Properly Monies Entrusted to This Firm'; 'The Failure to Appreciate What Was at Issue at the Meeting Held at the Minister for Forest Products, the Honourable Mr Paul Omedei'; 'The Disruption to My Preparation for the Hearing before the Legal Practitioners Disciplinary Tribunal'; 'My Financial Status at the Time of the Hearing before the Tribunal'; 'My Financial Circumstances Subsequent to the Hearing before the Tribunal'.
118 The affidavit concludes with an allegation of vindictiveness against senior counsel for the Complaints Committee, and comment on the 'charmed existence' of a former partner at a major law firm who had remained on the Roll of Practitioners despite convictions for criminal conduct.
119 The motion by the Complaints Committee was heard by the court on 11 April 2007. For the purposes of that hearing, the report of the Disciplinary Tribunal was, by law, conclusive as to the facts and findings in it. On 5 September 2007, the Full Court ordered that Mr Lashansky be struck off the Roll of Practitioners: Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211.
120 In the published reasons, the court records that, before it heard from the applicant, Mr Lashansky advised it of three applications he wished to have heard: first, that the court appointed to hear the matter be comprised of judges other than current or past members of the Supreme Court; second, that senior counsel for the applicant be restrained from acting in the matter; and third, that the solicitors for the applicant be restrained from acting. All applications were found to be without substance.
121 The court published, as an annexure to its judgment, a series of transcript excerpts from the hearing. Consistently they show that Mr Lashansky was unable to address the findings which had been made against him by the Disciplinary Tribunal, and was unable to appreciate what was relevant to the decision to be made.
122 In summary, the action in LPD 1 of 2001 was brought against Mr Lashansky and he was entitled to respond to it. But the way in which he conducted his response, including by bringing interlocutory motions, constituted vexatious proceedings in the following respects:
123 Mr Lashansky's appeal from the findings of the Disciplinary Tribunal was dismissed for want of prosecution. The order was first made in December 2002; a later application to reinstate the appeal was dismissed in 2005.
124 The history of delays leading to the first dismissal was detailed by Malcolm CJ in the reasons of the Full Court, delivered 4 December 2002: Lashansky v Legal Practitioners Complaints Committee [2002] WASCA 326. At the time of the hearing of the respondent's application to dismiss the appeal, on 24 July 2002, the appeal still had not been entered for hearing. It should have been entered for hearing by 27 April 2001, a delay of approximately 15 months.
125 The chronology of that delay (set out by Malcolm CJ at [6] [28]) includes:
126 The court also found that none of the 16 grounds of appeal had merit. Several of them were described as raising matters that were entirely irrelevant. On those findings, the appeal was conducted vexatiously.
127 There is a separate, relevant chronology of applications made by Mr Lashansky in this appeal.
128 On 6 December 2001, Mr Lashansky applied for orders, including that Minter Ellison be restrained from acting for the respondent, and that he have leave to produce further evidence. Mr Lashansky filed an affidavit in support, directed in large part to his challenge to Minter Ellison continuing to act. On 12 December 2001, Mr Lashansky issued a separate chamber summons for orders restraining Minter Ellison from acting in FUL 7 of 2001, and also in an action in the Federal Court.
129 On 24 July 2002, the Full Court resumed its consideration of an adjourned application by the Complaints Committee to strike out the appeal on the grounds that the appeal was incompetent or, alternatively, that the appeal should be dismissed for want of prosecution.
130 On 15 November 2002, Mr Lashansky filed a motion applying for orders staying the order of the Disciplinary Tribunal suspending him from practice, pending the determination of the appeal to the Full Court. He also sought discovery of any press releases provided to The West Australian newspaper in matters involving him or another practitioner (who had also been disciplined for matters relating to his trust account), and any material provided to the Law Society of Western Australia in relation to legal proceedings involving Mr Lashansky and that other practitioner.
131 The application to lift the suspension was supported by an affidavit filed 18 November 2002. It included reference to the conduct of other practitioners, some of whom he described as 'dishonest' and 'reprehensible', but who remained in practice. He justified the application for discovery of material relating to the other practitioner on the basis that he wished to establish whether there was 'a deliberate campaign by the Respondent to discredit me in the eyes of the public of Western Australia' [56].
132 On 20 November 2002, the Full Court refused the application for a stay.
133 On 4 December 2002, the Full Court dismissed the appeal for want of prosecution, while commenting on the total lack of merit in the appeal. On 18 December 2002, the orders made on 4 December 2002, dismissing the appeal, were extracted. With his appeal dismissed, the report of the Disciplinary Tribunal was to be taken as conclusive as to all facts and findings in it.
134 On 5 December 2003, the originating motion to strike Mr Lashansky from the roll was brought on for hearing, together with his motion for recusal. Both motions were adjourned sine die. The Court ordered that Mr Lashansky be at liberty to make application to the Full Court by 29 February 2004 to reopen FUL 7 of 2001.
135 On 18 February 2004, Mr Lashansky filed a motion for directions, for an extension of time within which to bring the application for the reinstatement of his appeal in FUL 7, and for other relief.
136 On 12 March 2004, Mr Lashansky filed a motion for orders, including that the orders dismissing his appeal be vacated and the appeal be reinstated. He further sought an order that he have until 30 April 2004 to bring an application for further and better discovery.
137 On 10 March 2005, Mr Lashansky applied by motion for further directions. The accompanying material included allegations 'of the existence of a conspiracy by certain high profile Western Australian Legal Practitioners to injure [him]'.
138 On 20 and 21 September 2005, Mr Lashansky filed material relating to his application to re-open the decision dismissing his appeal. In part, his application was based on allegations of a deliberate conspiracy by the Complaints Committee to injure him.
139 The application to re-open the decision was heard on 21 and 22 September 2005. It is apparent from the reasons of the Court of Appeal that they had regard to the material filed on 20 and 21 September: see Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217 [198] [224]. The court dismissed the application. In reasons published on 16 November 2005, the court doubted that it was open to it to set aside the earlier order, and also concluded:
That decision was not procured or affected by fraud. There has been demonstrated no conspiracy against the applicant. The applicant has not been prevented by any oversight or act of the respondent, of the court, or of the court's officers, from being fully and properly heard. On the contrary, it is clear beyond doubt that the various difficulties which the applicant has laboured under throughout this matter have resulted from his inability to appreciate what the thrust of the various references against him was, or what the reasons of the Tribunal were, or what material might be relevant to an appeal, or how to make an application in proper form, together with his habit of filing prolix and repetitive materials [258].
140 In the course of the reasons, the court referred to matters subsequent to the hearing, including that Mr Lashansky attempted to file a document described as a 'contemnor summons' regarding senior counsel for the Complaints Committee. Mr Lashansky sought the suspension of Mr Davies QC from practice, an injunction restraining him from acting in any matter involving Mr Lashansky, and leave to bring a private prosecution against him. The court observed that the summons did not comply with the rules, was not properly brought in that action, had nothing to do with the application, and the registry had properly refused to accept it for filing [256].
141 On 14 December 2005, Mr Lashansky filed an application for special leave to appeal. On 5 September 2006, the High Court dismissed an application by Mr Lashansky for special leave to appeal from either or both of the decisions dismissing the appeal for want of prosecution and dismissing Mr Lashansky's motion to reopen the that decision.
142 On 12 March 2004, Mr Lashansky had applied to have the practice certificates of various practitioners summarily cancelled. Templeman J (who was managing interlocutory matters in the actions in the Full Court involving Mr Lashansky) dealt with that application on 5 April 2004, and dismissed it.
143 Mr Lashansky appealed from that decision of Templeman J.
144 On 18 October 2004, Mr Lashansky applied for orders including:
(1) that the court in FUL 7 of 2001 be constituted by judges other than past or present members of the Supreme Court of Western Australia;
(2) that a directions hearing be held to progress the present matter and also FUL 7 of 2001 and LPD 1 of 2001;
(3) the directions make allowance for 'envisaged litigation' by Mr Lashansky and former clients of his practice challenging 'the constitutional status and judicial legitimacy of the Supreme Court of Western Australia as currently constituted', the legality of his suspension from practice and the effect on his former clients, and whether his basic human rights are capable of being maintained before the court.
145 The appeal (FUL 48 of 2004) was heard and dismissed on 19 October 2004: Lashansky v Howell [2004] WASCA 252. McKechnie J said in his reasons:
It is important, I think, just to reflect upon the way in which this matter was raised before Templeman J. I have dealt with that to some degree. Templeman J was sitting to give directions for an appeal when the practitioner lodged a motion which sought completely different relief against parties who were not parties to the appeal. The motion affected each of the practitioners, both severally and jointly. At first glance this was an entirely inappropriate method. The motion is probably incompetent to the extent that it joins others and seeks different orders in respect of those persons from those orders which would normally follow the appeal [16].
[The] method chosen was entirely inappropriate, even if it was competent, to attach a motion to discipline practitioners to a motion for directions for an appeal [19].
147 At that time, Mr Lashansky had not prepared a draft appeal book index, had not attended the appointment to settle the index, and had not entered the appeal for hearing.
148 Mr Lashansky applied at the hearing of the appeal to hand up two affidavits signed that day. One is an affidavit of Donald Colin McIntyre, sworn 19 October 2004. Mr McIntyre described himself as a businessman, and a former member of the Northern Territory Police. He referred to complaints he and others had had made about the conduct of Minter Ellison in litigation in the Federal Court involving tenants of a shopping centre. The affidavit is 326 pages long. It contains scandalous accusations against various persons. I cannot see any reasonable purpose in the filing of such an affidavit in the appeal, particularly on the day it was to be heard and having regard to the issues in the appeal. It was in all respects irrelevant to the appeal.
149 The second was by Ann Ailakis, and was said by Mr Lashansky to deal with the reasons why he was unprepared.
150 I am satisfied that the application for the summary cancellation of the practice certificates of the five practitioners was instituted to harass and annoy lawyers who had acted against Mr Lashansky. That application and the appeal were vexatious proceedings, and were conducted in a vexatious way. On the findings of the court on appeal, the appeal was pursued without reasonable ground.
151 On 10 June 2004, Mr Lashansky commenced an action (CIV 1768 of 2004) against the Board, Hillary Elizabeth Orr, and Price Sierakowski. Ms Orr was the liquidator of RL Wright Pty Ltd, and the firm of Price Sierakowski were the solicitors for Ms Orr. In his statement of claim, Mr Lashansky makes various allegations, including allegations of improper purpose by the Board in proceeding against him knowing that the allegations 'were in all probability perjured or fabricated and/or were of so minor a nature as would not stand scrutiny by a Court of Appeal and/or with the improper purpose of destroying any liens held by the Plaintiff over [client] files'.
152 Mr Lashansky swore an affidavit in the action on 2 July 2004. This affidavit (like some others before me) does not show that it was filed. A substantial part of the affidavit is an annexure, being an affidavit sworn 11 March 2004 in LPD 1 of 2001 by Kerrin Laura Carter, legal practice administrator.
153 On 30 August 2004, Mr Lashansky filed an affidavit in which he stated his belief that the two firms of solicitors acting for the first and second defendants were not entitled to appear.
154 On 4 November 2004, Mr Lashansky filed an application for leave to apply for summary judgment and for summary judgment. In an affidavit filed that day, Mr Lashansky deposed to his belief that his former practice had been the subject of unlawful surveillance. I do not understand the relevance of that material, other than as part of his general allegation of a conspiracy against him.
(1) An affidavit by Ann Ailakis, sworn 19 October 2004 but only filed on 4 November. Ms Ailakis deposed to recovering files on behalf of her father's companies from the supervising solicitor.
(2) An affidavit of John Joseph Dryka, sworn 2 November 2004. Mr Dryka had provided expert opinion in the arbitration between RL Wright Pty Ltd and Mr Walker.
156 In January and February 2005, Mr Lashansky made further affidavits in this action in which he included material relating to a proposed pipeline to deliver water from the Kimberley to Perth; his work in 1999 and 2000 with Mr Dryka on the proposed pipeline; the proposed carbon credits arising from the Kyoto Protocol and an approach to the then government to look at a state wide afforestation scheme using carbon credit windfall money; and a holistic approach to environmental degradation. The material appears to be in support of a claim that the papers containing his research into these matters had been seized by the supervising solicitor.
157 In a further affidavit, sworn 23 February 2005, Mr Lashansky referred to becoming deeply perturbed when he saw the reasons of the Full Court dismissing his appeal in FUL 7 of 2001 for want of prosecution, 'as the Full Court had failed to give any credence to a wealth of affidavit material filed in the matter that would clearly demonstrate the outstanding merit in my Appeal and its inevitable prospects of success' [8]. He further said that he had determined the best course would be to apply for a bench consisting of independent judges from outside Western Australia to contest the decision striking him from the roll because independent judges 'would not be as dismissive of the central plank in my defence to the charges of professional conduct, namely that the institutionalised legal profession in Western Australia had pursued a "political" prosecution of me in furtherance of its own corrupt ends' [12]. Mr Lashansky continued, stating his belief that there was an ongoing conspiracy involving legal authorities in Western Australia that was aimed at ensuring that his prospects were undermined by depriving him of money needed for the prosecution of the appeal. In particular, he complained about the Board and the Complaints Committee instructing Mr Davies QC.
158 Mr Lashansky also stated his belief that Price Sierakowski, the third defendant, should be restrained from appearing on behalf of Ms Orr.
159 On 24 February 2005, the master made orders requiring the plaintiff to file and serve a minute of amended statement of claim on or before 4 March 2005.
160 On 10 May 2005, the Legal Practice Board applied for orders dismissing the action for failure by Mr Lashansky to comply with the orders of the master. On 24 May, a registrar ordered Mr Lashansky to file and serve an application to amend his statement of claim and a minute of proposed amended statement of claim by 30 June 2005. On 2 August 2005, the registrar ordered that the statement of claim be struck out and the action be dismissed unless Mr Lashansky filed and served that application and minute by 25 August 2005.
161 Mr Lashansky complied only after the springing order was made on 2 August 2005, filing the documents on the last day permitted. The minute of the substituted statement of claim included claims that:
(1) at the time of the application in LPD 3 of 2000, counsel for the Board 'failed, refused or neglected' to include certain material in the affidavit in support of the application 'that led to the Order for the Plaintiff's suspension being handed down were fundamentally flawed': [11].
(2) at the time that the Board appointed Minter Ellison to act on its behalf it 'acted negligently in failing to appreciate that Minter Ellison had actual or potential conflict of interest such as would preclude [it] from accepting instructions': [12].
(3) the Board acted negligently in appointing the supervising solicitor, and included scandalous claims regarding the supervising solicitor: [14].
(4) an officer of the Board 'well knew that the allegations upon which the Plaintiff had been suspended from practice were in all probability perjured or fabricated and/or were of so minor a nature as would not stand scrutiny by a Court of Appeal': [23].
162 In the claim for trespass to goods, the statement of claim refers to items, including files and research material for a proposed doctorate in law, material relating to a proposed white paper on carbon emissions trading and environmental regeneration, reafforestation and rectification of dry land salinity problems, soil degradation, weed infestation, and the Kimberley to Perth water pipeline 'that was likely to occur as a consequence of the economic windfall brought about through carbon credit trading': [24].
163 Relief sought included leave to institute private prosecutions against the Board, including individual members in their personal capacity for the failure to protect and maintain Mr Lashansky's lien over documents.
164 On 14 July 2006, Mr Lashansky filed an affidavit of 130 pages. It included allegations of 'a contemptible attitude' [31], and 'abominable behaviour towards me' against the Board [38], and to hardship caused to him over the course of the litigation. It also referred to satisfactory work Mr Lashansky had carried out for various clients.
165 The purpose of the affidavit is not, however, entirely clear. It does not obviously relate to any application then before the court or in contemplation in the proceedings in which it was filed.
166 On 14 July 2006, Mr Lashansky filed another affidavit, sworn by Douglas Trevor. The affidavit was generally supportive of Mr Lashansky, but ostensibly unrelated to any issue in an application then before the court.
167 On 17 July 2006, Mr Lashansky re-swore an affidavit, first sworn on 12 January 2005. It dealt in some detail with the arbitration between RL Wright and Mr Walker, and a defamation action brought by Mr Walker. Mr Lashansky's files in these matters were among those taken by the supervising solicitor on his suspension from practice. Otherwise the purpose of the affidavit in this action is obscure.
168 On 24 August 2006, Mr Lashansky filed a re-listed chamber summons for the payment of sums held by the defendants. He filed a further document described as 'concise particulars', although (at 21 pages) it was not concise and its contents are not properly described as particulars. He attached submissions filed in the arbitration in 1998. I cannot see the relevance of those submissions to any application before the court in 2006.
169 On 6 September 2006, Mr Lashansky filed 'particulars' of his claim to be entitled to payment of money then held in trust by Price Sierakowski. That document also cannot be properly described as particulars. Much of it is unrelated to the proceedings in which it was filed. It is wide ranging and long (110 pages), and includes sections on why the decision of the Full Court dismissing his appeal in FUL 7 of 2001 was flawed, and a section on his 'unhappiness with the dismissal of his appeal'.
170 A further section was headed: 'The Failure to Investigate Alleged by the Plaintiff and the Arrant Refusal of the Tribunal at First Instance and Thereafter the Full Court and Thereafter the Court Of Appeal, [Notwithstanding Confirmation of the Undoubted Merit in the Plaintiff's Initial Complaints in Light of Subsequent Events], to Accept the Undoubted Merit in the Plaintiff's Allegations of "Rats in the Ranks" of the Legal Profession Who Continue to Lead Charmed Existences While the Plaintiff Himself Was Pursued "Up Hill and Down Dale"'. More than 100 pages of exhibits are attached to the document.
171 These particulars were filed the day after the High Court refused Mr Lashansky's application for special leave to appeal from the decisions of the Full Court and the Court of Appeal.
172 On 5 October 2006, Templeman J heard the application by Mr Lashansky regarding the money held by the liquidator. The day after the hearing, Mr Lashansky filed a further affidavit in support of an application that Ms Orr and others be produced for crossexamination, and for summary judgment.
173 Templeman J delivered judgment on 3 November 2006, declaring that Mr Lashansky had a first charge over the moneys paid to Ms Orr and held in the trust account of Price Sierakowski, pursuant to the judgment entered in the arbitration in which he had acted for RL Wright, and the subsequent taxation of costs, less the liquidators reasonable costs incurred in recovering the moneys. Templeman J ordered that the amount of $86,215.06 be forthwith paid out to Mr Lashansky.
174 On 5 April 2007, Mr Lashansky applied for an urgent injunction to restrain Minter Ellison from continuing to act for the Board in that action and other related litigation, pending determination of the application for a final injunction in LPD 3 of 2000. On 5 April 2007, he filed an affidavit in support of that application, and also an application to restrain Mr Davies QC from acting on behalf of the Board.
175 On the 24 December 2009, CIV 1768 of 2004 was placed on the Inactive Cases List.
176 On 18 June 2010, Mr Lashansky filed a chamber summons for orders including that the action be removed from the Inactive Cases List and to have the firm of McCallum Donovan Sweeney, which was then acting for the Board, restrained from continuing to represent the Board in the action and related proceedings. Mr Lashansky filed an affidavit sworn 18 June 2010 in support of the application. In it he included a variety of claims: that proposed funders of the Kimberley water pipeline had sought certain documents from him that had been seized by the Board, and his inability to produce them had led to a breakdown of trust; that the matter had been delayed by an incorrect decision by a master, later reversed on appeal in 2006; that Ms Orr and Price Sierakowski had wrongfully deprived him of a very valuable costs order by recovering, in taxation, an amount below what Mr Lashansky estimated was due; that as a result of 'grave shortcomings on the part of the Supreme Court administration and Minter Ellison' his application for urgent injunctive relief to restrain Minter Ellison was not heard until October 2008; that significant portions of the material provided to Templeman J in the applications before him were not on the court record in appeal CACV 38 of 2009. Mr Lashansky further alleged that a practitioner 'has been involved in falsely inducing the former Associate to Justice Beech into wrongfully entering a clearly active matter on to the Inactive Cases List' [71].
177 In deposing that the relief sought was urgent, Mr Lashansky stated that material that he said had been taken by the supervising solicitor approximately eight to 10 years before was 'of vital importance to the sustainability of agriculture and the ongoing health of Australia's rivers': [74]. He referred further to the perilous state of a substantial number of farmers; a promise by the Coalition to consider soil organic carbon in its greenhouse gas abatement policies; this scheme of 'certain well-connected businessmen' to use brown coal as a fertiliser; and work by a year 12 high school student which resulted in her winning a high school science prize. Mr Lashansky completed his affidavit by referring to a letter he had sent imploring the then Federal Minister for the Environment to not approve the Gorgon Gas project on Barrow Island, and to later events in the Gulf of Mexico.
178 On 23 June 2010, Beech J refused an application by Mr Lashansky to have the case removed from the Inactive Cases List: Lashansky v Legal Practice Board [No 2] [2010] WASC 159. Beech J subsequently dealt with the question of costs in a supplementary judgment, Lashansky v Legal Practice Board [No 2] [2010] WASC 159 (S), in which his Honour recorded:
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.
By letter of 28 July 2010 my Associate requested advice as to when the plaintiff's submissions on costs would be provided.
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.
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.
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.
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.
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.'
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.
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 [8] - [16].
179 Mr Lashansky appealed from the decision of Beech J.
180 On 26 July 2010, Mr Lashansky applied for orders in the appeal, including an order that the registrar of the Court of Appeal be compelled to search for documents in LPD 3 of 2000. Mr Lashansky also sought orders amending time limits in the appeal, on the basis that the decision of Beech J was not interlocutory.
181 On 7 September 2010, Mr Lashansky applied to the Court of Appeal to restrain 'MacCallum Donovan Sweeney' from continuing to represent the Board in the appeal. The application alleged fraud by the solicitors, and also sought 'ancillary relief relating to the status of [the solicitor] and his status as an Officer of the Court'.
182 In an affidavit filed that day, Mr Lashansky included correspondence sent to the Premier of Western Australia in relation to a submission to the Committee investigating the feasibility of a Kimberley to Perth water pipeline, and a letter to the Chief Justice and others regarding the failure by the Complaints Committee to investigate complaints he had made. The body of the affidavit is quite intemperate, including allegations that the trial judge had turned a blind eye to an indictable offence by a practitioner.
183 On 8 September 2010, Mr Lashansky sent to the Court of Appeal copies of documents, including an affidavit sworn in CACV 38 of 2009, correspondence with the Chief Justice, and submissions. The material is many pages, the correspondence to the Chief Justice alone is over 400 pages, and wide ranging. It is not pertinent to the issue in the appeal, which was concerned solely with a procedural decision.
184 On 10 September 2010, Newnes JA heard a number of interlocutory applications in the appeal. He dismissed the application by Mr Lashansky of 26 July, ordered that he file and serve the appellant's case by 30 November 2010 or the appeal be dismissed, and made orders for the filing of evidence in the application to restrain the solicitors for the Board.
185 The appellant's case was filed on 30 November 2010. The registrar of the Court of Appeal gave notice to Mr Lashansky to show cause why the appeal should not be dismissed under r 43(2)(g)(i), and r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules, under which the court may dismiss the appeal if none of the grounds of appeal has a reasonable prospect of succeeding; or the appellant has not obeyed the rules or any order made under them.
186 The grounds are lengthy. As a threshold ground, Mr Lashansky asserted that the decision of Beech J was 'the product of a mind that is clearly infected with an intolerable degree of prejudice against the Appellant' (ground 1). The following 40 numbered paragraphs, many of which include particulars, include complaints regarding the decision in 2002 to dismiss his appeal against the findings of the Disciplinary Tribunal [6]; an application to crossexamine the solicitor for one of the respondents [9Z]; comments on an unrelated decision regarding discipline of another practitioner [13] - [17]; and his lost commercial opportunities related to carbon sequestration technology [18]. More generally, Mr Lashansky alleged a climate of prejudice against him by the judiciary in this State. These matters were obviously irrelevant to an appeal on a procedural question - whether the action had been inactive for 12 months and had been on the Inactive Cases List for six continuous months.
187 The orders sought on appeal (part of the filed appellant's case) included matters which were entirely inappropriate
188 On 23 February 2011, the Court of Appeal refused Mr Lashansky's application and refused leave to appeal: Lashansky v Legal Practice Board [2011] WASCA 42. Newnes JA (Pullin JA agreeing) said of the grounds of appeal:
It is immediately obvious that the grounds do not comply with r 32(4) of the Court of Appeal Rules. They do not succinctly state grounds of appeal but comprise a lengthy mixture of complaints, assertions, observations and submissions. The appellant's submissions and the appellant's case also fall a long way short of what is required by the Court of Appeal Rules and add nothing of substance to what is contained in the grounds of appeal [29].
189 Newnes JA also considered whether it was possible to identify the issues or alleged errors on which the appeal was based, despite the lack of proper grounds. He found the alleged errors were without substance, and that there was no proper basis to give Mr Lashansky the opportunity to file an amended appellant's case. His Honour concluded:
[The] grounds of appeal and submissions filed by the appellant reveal a scant regard for the rules and fall so far short of what is required that there is no reason to believe the position would be improved upon another attempt. But most importantly, there is nothing in any of the papers before the court to suggest that somewhere in that morass of material there might be an arguable point of appeal. On the contrary, on what is before us the appeal is entirely misconceived. To prolong the matter would be simply to postpone its inevitable demise [38].
190 On the hearing of the appeal, Mr Lashansky applied orally for Pullin JA to disqualify himself for bias. The transcript also shows that, during the hearing, he left the court room, conduct he repeated in the hearing before me.
191 On the findings made in the appeal, it was pursued without reasonable grounds and was, accordingly, vexatious.
192 The affidavit of 7 September 2010 and material provided to the court on 8 September 2010 included a large quantity of material that was of no possible relevance to an appeal on a procedural issue. In this respect, Mr Lashansky conducted the proceedings so as to cause delay, and his conduct in that regard also was vexatious.
193 By a writ filed 24 April 2008, Mr Lashansky commenced an action against Ms Coombs, an employee of the Board, and against the Board. He alleged that Ms Coombs had made a defamatory statement about him in April 2002. A statement of claim was filed the same day.
194 The defendants applied to strike out the statement of claim.
195 On 4 June 2008, Mr Lashansky filed a chamber summons for orders including that the matter be referred to Templeman J or the Chief Justice for case management. He also gave notice of his intention to raise a matter under the Australian Constitution should the defendants persist with their strike out application.
196 In an affidavit filed in support of the application, Mr Lashansky covered a range of matters that could not be pertinent to his defamation claim. In particular, he contended that the proceedings leading to his removal from the Roll of Practitioners were fatally flawed, for reasons including the deliberate forgery of a vital document. He repeated his complaints about the conduct of the Board and the supervising solicitor in December 2000. Newnes J described most of the affidavit as irrelevant to the present application and to the action: Lashansky v Coombs [2008] WASC 207 [11].
197 On this, as on several other occasions, Mr Lashansky was late in filing documents (and failed to file submissions at all). He explained the delay in preparing documents by technical problems - in this case a toner cartridge and the supply of an incorrectly sized replacement.
198 The application to strike out was heard by Newnes J on 22 September 2008. At the hearing, Mr Lashansky applied for Newnes J to disqualify himself on the ground that he was biased against him. He presented a motion and affidavit that he said he had been unable to copy because of problems with his photocopier. Neither document had been filed. Newnes J declined to disqualify himself.
199 Newnes J struck out the statement of claim. He found that, as pleaded, the claim was clearly statute-barred and should be dismissed. Alternatively, the statement of claim was defective if it purported to plead a claim that was not statutebarred, and should be struck out. Newnes J struck out the statement of claim, but granted leave to re-plead by 20 October 2008.
200 His Honour published reasons on 26 September 2008.
201 Mr Lashansky did not comply with the order to re-plead by 20 October 2008. On 2 October 2008 he filed a chamber summons for an extension of time until 30 days after he returned from travelling to the Republic of South Africa to obtain evidence to support his claim.
202 On 12 November 2008, Mr Lashansky filed a chamber summons for summary judgment on the issue of liability and other ancillary relief. Ancillary relief included discovery of documents related to any investigation or disciplinary hearing regarding two completely unrelated matters involving other persons. In an affidavit filed in support of the summons, Mr Lashansky included transcript of the proceedings against him in the Disciplinary Tribunal, submitted that the actions of the Complaints Committee were designed to destroy him, and named other practitioners whom he alleged should be investigated. This was completely irrelevant to the claim for defamation.
203 Following an application by the defendants for summary judgment, on 7 April 2009 Newnes J made a springing order for the action to be dismissed unless Mr Lashansky filed and served a minute of amended statement of claim on or before 12 May 2009: see Lashansky v Coombs [No 2] [2009] WASC 87. His Honour said:
The time within which the plaintiff was required to file and serve any amended statement of claim has long since expired and no application has been made for an extension of time. There is currently no statement of claim on foot. That has been the position since 22 September 2008 and it is obviously a highly unsatisfactory state of affairs, particularly as the action itself was not commenced until almost six years after the alleged slander. It is now almost seven years since the slander is alleged to have been published.
I would not, however, accede to the defendants' application for judgment at this stage. The plaintiff's case is not necessarily beyond repair. I consider that the plaintiff should be given a further opportunity to put the statement of claim into an acceptable form.
However, in the light of the plaintiff's disregard of the time limit in the order of 22 September 2008 and his approach to this application, it is necessary to point out that there is a limit to the indulgences which he will be granted by the court. While the plaintiff is acting in person, as a former legal practitioner he is familiar with the requirements of the rules of the court and with the obligation of litigants to comply with them and with the orders of the court.
The plaintiff's attitude to this litigation has tended to give the impression (incorrectly, I hope) that he considers the rules and orders of the court do not apply, or do not apply with equal force, to him. Any such belief would, of course, be seriously mistaken. The plaintiff has an obligation to ensure that the steps required to be taken on his part in the action are taken in a proper and timely way. If he fails to do so he runs a serious risk that the action will be dismissed at an interlocutory stage [42] [46].
204 Despite those comments, on 12 May 2009, Mr Lashansky filed a chamber summons to extend the time to 26 June 2009. He sought further or alternative orders for the separate hearing of issues (including the limitation defence), and to stay the proceedings until that was decided.
205 Mr Lashansky did not file and serve a minute of amended statement of claim and, on 15 May 2009, judgment was entered for the defendants.
206 On 16 October 2009, Le Miere J dismissed an application for an extension of time to comply with the springing order. This followed three listed hearings. The first, on 9 June 2009, was adjourned due to Mr Lashansky's illness. A further hearing listed on 18 June was adjourned to allow Mr Lashansky to prepare affidavits and perhaps obtain assistance from a legal practitioner. The third proceeded. Le Miere J described the hearing on 23 July in his reasons in Lashansky v Coombs [No 3] [2009] WASC 300:
The plaintiff's application came on for hearing on 23 July 2009. The plaintiff relied upon an affidavit sworn by him on 12 May 2009 and an affidavit sworn by him on 22 September 2008 in support of an application that 'his Honour Justice Newnes should recuse himself from any further participation in any matter to which I am a party'. In the course of the hearing the plaintiff took the witness stand and verified his unsworn affidavit of 23 July 2009 which became exhibit 1. The plaintiff also tendered as exhibits an article from the Scientific American Journal, a bundle of emails, a copy of a letter of 31 January 2005 from the plaintiff to the Premier of Western Australia and others, an article from the June July 2009 edition of the Ecos magazine, a power point presentation entitled 'Corrado Power Point Presentation, The Australian Biodiesel Investment Opportunity Arising From The Collapse Of Australian Renewable Fuels', a printout of an item entitled 'Supermarkets to Squeeze Farmers as Margins Fall' from a Ninemns Money internet site and a printout from an item entitled 'Call to Sacrifice Parts of Murray-Darling' from the ABC News internet site. Counsel for the defendants objected that most, if not all, of the material in the exhibits is irrelevant. I accepted the material into evidence subject to relevance [10].
207 His Honour refused the application to extend time. The decision was published on 16 October 2009.
208 In this action, Newnes J made orders on 26 September 2008 requiring Mr Lashansky to re-plead his claim by 20 October 2008. On 7 April 2009, his Honour made a springing order requiring the plea by 12 May 2009. The decision of Le Miere J refusing an extension of time to comply with the springing order was nearly 12 months after Mr Lashansky had been ordered to re-plead his claim, and he had still not done so. To say the least, Mr Lashansky's conduct of the proceedings delayed the action and was vexatious.
209 On 30 October 2009, Mr Lashansky applied for leave to appeal the decision of Le Miere J (CACV 127 of 2009). Mr Lashansky did not appear on the date listed for the hearing of the appeal, 22 January 2010. In their reasons, Owen and Pullin JJA said that Mr Lashansky had failed to file and serve the appellant's case within time, and the appeal had been referred to the Court of Appeal to consider whether the appeal should be dismissed for non-compliance with the rules: Lashansky v Coombs [2010] WASCA 130. The appellant's case had still not been filed at the date of hearing. The appeal was dismissed.
210 In the reasons for judgment, the court noted that while Mr Lashansky had advised the court that he was returning to Australia from South Africa in early January 2010, it appeared that he had remained in South Africa despite being advised of the hearing date.
211 On 19 May 2010, Mr Lashansky filed a writ in which he claimed relief against the Board and three individuals, for damages, a declaration that the Board had acted improperly and unconscionably, an account for legal fees owing to him as at the date of his suspension from practice, and certain mandatory injunctions (CIV 1733 of 2010). Causes of action included conspiracy to injure, entered in December 1999, by fraudulently inducing Mr Lashansky to pay out money standing in his trust account.
212 On 31 May 2011, Mr Lashansky filed an affidavit 'in support of appropriate directions as to summary judgment'. On 15 June 2011, he filed a statement of claim.
213 On 9 August 2011, the first defendant applied for summary judgment. On 21 September 2011, Mr Lashansky filed (from South Africa) an affidavit in response. In it, he asserted that the application was a 'devious device' concocted to overcome a false representation by the first defendant's solicitor, and that the solicitor was a 'serial liar'. He repeated the claims he had made against the Board, relating to events leading to his suspension from practice.
214 On 18 October 2011, Mr Lashansky filed a further affidavit in support of an application to vacate a hearing listed for 20 October. He returned to the loss of his lien over files, following his suspension from practice, and the loss of files relating to greenhouse gas, carbon trading, salinity and related topics.
215 The first defendant's application for summary judgment proceeded before the acting master, who, on 19 January 2012, allowed the application and entered judgment: Lashansky v The Legal Practice Board of Western Australia [2012] WASC 16. The other defendants had not been served with the statement of claim. Relevantly, the acting master accepted that, while it is undesirable to decide limitation issues in interlocutory proceedings except in the clearest of cases, this case was clear. The first defendant had a good defence to all claims, and there was no serious question to be tried [41] [47].
216 I am satisfied the action was instituted without reasonable ground.
217 On 2 February 2012, Mr Lashansky applied for leave to appeal.
218 On 9 February 2012, he filed an application for an extension of time within which to file the appellant's case in the appeal. On 9 March 2012, the court gave him until 6 April 2012 to file the appellant's case.
219 On 9 March 2012, Newnes JA further extended time for service of the appellant's case to 10 April 2012.
220 On 7 March 2012, Mr Lashansky had filed a second interim application seeking relief including a direction that the registrar of the Court of Appeal was to have no further part in the appeal; and a direction that the appeal was to be progressed and determined by Justices other than current or past members of the Supreme Court of Western Australia. In his affidavit in support of the application, Mr Lashansky:
(1) asserted that the 'statutory emanations' of the legal profession in Western Australia had embarked on a conspiracy to destroy him: [9];
(2) asserted that the judiciary and certain members of the Supreme Court administration, including the registrar, had actively aided the statutory emanations of the legal profession in their illegal pursuit: [12];
(3) repeated allegations of bias against a former Justice of the Court of Appeal, and against the Court of Appeal for rejecting those allegations and asserted a 'Climate of Bias' against certain litigants in Western Australia: [29];
(4) continued to dispute the reasons for judgment dismissing his appeal from the Disciplinary Tribunal in 2002: [46];
(5) disputed the correctness of the decision in CIV 1768 of 2004, and the decision on appeal: [55]; and
(6) disputed the earlier decisions by Pullin JA to not recuse himself.
221 The application was an abuse of process. It was not open to Mr Lashansky to challenge earlier decisions of the court in this manner. This is also one of many instances where he brought allegations of bias and conspiracy against those who had made decisions against him.
222 That application was heard and dismissed on 23 March 2012. On 3 April 2012, the Court of Appeal published reasons for dismissing the application: Lashansky v Legal Practice Board of Western Australia [2012] WASCA 77. In those reasons, Newnes and Murphy JJA said:
The application was accompanied by a substantial affidavit sworn by the appellant. The affidavit ranges, incoherently it must be said, over a number of topics, most of which are of no apparent relevance to the subject-matter of the application. To the extent the appellant touches upon the grounds for the orders he seeks, he asserts that the members of the court are actively assisting the respondent to 'destroy' him and that there is 'a climate of bias that exists against [the appellant] in the Supreme Court of Western Australia'. The appellant appears to contend that that is apparent from his lack of success in other proceedings before the court. However, because of the rambling nature of his affidavit it is difficult to be sure what the appellant contends. Unfortunately, the appellant's oral submissions exacerbated, rather than ameliorated, that problem.
So far as the application relates to the Court of Appeal Registrar, the appellant's complaint appears to be that in addition to being a participant in aiding the respondent to destroy the appellant, the registrar has set matters down for hearing without requesting his available dates.
As we understand the appellant's application, it relies upon either actual or apprehended bias on the part of the existing and past members of the court and the Court of Appeal Registrar. There is, however, nothing which is capable of establishing either [6] [8].
The appellant's affidavit provides no basis for a finding of actual or apprehended bias. The affidavit is replete with general assertions of bias and conspiracy but is devoid of any evidence that might be capable of making out those allegations. As we have said, the appellant's contention appears to be that it can be inferred from his lack of success in other proceedings before the court that the court has set out to assist the respondent by denying the appellant a fair hearing. The appellant simply ignores entirely the obvious explanation that his lack of success is due to a lack of merit in those earlier proceedings [12].
223 On those findings, the application regarding the registrar of the Court of Appeal was pursued without reasonable cause, and the manner in which it was conducted was so as to delay the resolution of the proceedings.
224 On 8 May 2012, a springing order was made, dismissing the appeal unless the appellant's case was filed within 14 days.
225 Mr Lashansky then applied, on 11 May, to re-open the application of 7 March for further argument, and to have the springing order requiring him to file and serve the appellant's case by 22 May 2012, 'stayed' until 31 May 2012 to enable him to commence proceedings in the High Court.
226 In his affidavit in support of the application, Mr Lashansky ranged over many topics of no relevance to any question before the court. In particular, he again challenged the fact-finding in the Full Court decision dismissing his appeal against the findings of the Disciplinary Tribunal in December 2002; the findings of the Disciplinary Tribunal and the conduct of the Legal Practice Board in the proceedings before the Tribunal; the behaviour of the Court of Appeal in September 2005; the failure of McKechnie J to require an undertaking as to damages in November 2000; and the findings made in subsequent proceedings regarding the application for a retrospective undertaking. He alleged that he would not receive a fair and proper hearing of his appeal from justices of this court, and further that reasons for decision would be 'manipulated to portray me in as poor a light as possible'. He alleged unconscionable conduct by counsel for the Board in the application before the acting master.
227 On 18 May 2012, Mr Lashansky filed a document in the appeal headed 'The Outline of Submissions of the Appellant Relating to the "Dirty Hands" of the Respondent and the Seeming Inability of the Western Australian Judiciary to Deal with This Deplorable State of Affairs'. The heading is a fair indication of the tone and content of the document. The first section of the document alleged various indictable offences by officers of the respondent Board. The second section alleges the destruction of evidence in an unrelated action by someone not a party to the appeal: the only connection with the appeal is that Mr Lashansky at one stage acted for some of the parties in that action (the Ridout family). The third section moved to agricultural issues, climate change, groundwater and salinity (in Western Australia and elsewhere), soil acidity, and agricultural pests including wild dogs. The last paragraph, and the last attachment, referred to cheap imports of cooking oil and food safety scandals in China. Over 100 pages of appendices were attached to the document. The range of topics is comparable to that in the body of the affidavit.
228 The Court of Appeal heard the application to re-open the application of 7 March on 18 May 2012. The presiding judge gave Mr Lashansky 20 minutes to make his submissions. He used nearly half of that time in a discussion of the role of South Africa and South African statesmen in 20th century events, before turning to topics including organic carbon levels, salinity, and the effect of the Atlantic polar current on climate change.
229 On 22 May, Mr Lashansky filed his appellant's case. As an overarching ground of appeal, Mr Lashansky contended that the acting master was 'infected with an intolerable degree of prejudice' against him. In written submissions, he again asserted a climate of bias against him and repeated the allegations he had made in other proceedings. He completed his submissions with the following paragraph:
The Appellant intends to compile a separate appeal book setting out the differences between the treatment meted out to him when compared to the approach taken in the Mau Mau torture case in the UK, the Christmas Island Nuclear Testing Survivors and the victims of Dutch torture in their former colony of Indonesia.
230 On 14 June 2012, the court published its reasons for dismissing the interim application: Lashansky v Legal Practice Board of Western Australia [No 2] [2012] WASCA 122. In those reasons, the court (Pullin and Newnes JJA) said:
It is evident that what the appellant seeks, in substance, is to have another opportunity to persuade the court that it should receive into evidence the page from The Australian Journal of Agricultural and Resource Economics and hear further argument on the relief sought in the earlier application, based on that document. That must be rejected.
The current application is accompanied by an affidavit of the appellant which runs to some 94 paragraphs and has a number of attachments. It must be said, as respectfully as one can say this, that the affidavit is simply incoherent. However, the affidavit does have as an attachment a copy of the page from The Australian Journal of Agricultural and Resource Economics which the appellant sought to tender on the previous application. It consists of the first page of an article entitled 'Australia's National Action Plan for Salinity and Water Quality: a retrospective assessment', written jointly by a professor in the Centre for Environmental Economics and Policy at the University of Western Australia and the senior research scientist at the Department of Primary Industries in Victoria. The abstract, in substance, describes the article as an assessment of the performance of the National Action Plan for Salinity and Water Quality over a seven year period from its establishment in 2000.
With all due respect to the appellant, it is impossible to imagine how this document, or indeed the article in its entirety, might be thought relevant to the determination of his application to have this court disqualify the Court of Appeal Registrar and all present and former judges of the court from any involvement in the appellant's appeal. The written submissions filed (belatedly) by the appellant did nothing to solve that mystery. The appellant's oral submissions did not touch upon the substance of the application at all but were largely devoted to a disjointed excursion into the Treaty of Versailles, the outbreak of world war two and the desert campaign in north Africa, salinity problems in Australia, and the appellant's conflict with the respondent.
The court refused to receive the document at the hearing on 23 March 2012 on the ground that it was irrelevant, as it plainly was. The first limb of the appellant's current application must be dismissed [10] - [13].
231 On 18 November 2013, the Court of Appeal dismissed the appeal: Lashansky v Legal Practice Board of Western Australia [No 3] [2013] WASCA 260. The substantive reasons were given by Newnes JA. In summary, he found no error had been demonstrated in procedural rulings, and that the acting master was correct in finding the claims were clearly statute-barred [59]. The allegation of bias against the acting master was dismissed as nothing had been advanced which might be capable of sustaining that claim.
232 In his reasons, Newnes JA refers to two oral applications made by Mr Lashansky in the hearing of the appeal: to call Peter Ridout to give oral evidence relating to problems Mr Lashansky had had relating to the disappearance of some documents in 2000, and to tender a copy of a newspaper article of 11 April 2013, entitled 'Out of Africa comes the healthy way of farming'. His Honour described the evidence proposed to be adduced in each case as plainly and self-evidently irrelevant to the issues on the appeal. He further said of the proposed evidence of Mr Ridout that it was 'simply another manifestation of the appellant's determination to canvass his long-standing conflicts with the respondent' [68].
233 All three members of the court (Pullin, Newnes and Murphy JJA) refused applications by Mr Lashansky that they recuse themselves for bias, actual or apprehended. Mr Lashansky had previously, and unsuccessfully, asked Pullin JA to disqualify himself in other matters on the same grounds. Newnes JA said of the application with regard to him:
Finally, at the outset of the hearing of the appeal the appellant made an application that I disqualify myself from hearing the appeal on the ground, as I understood it, of apprehended bias. He made no submissions in support of that application and the grounds of it were not apparent. I could only assume that he contended such an apprehension arose from the 'climate of bias' referred to above and/or because on previous occasions I have been a member of this court when it has dismissed an application brought by the appellant. Neither, however, provides any arguable basis for a reasonable apprehension of bias and I am not aware of anything else which might provide a foundation for the application. I accordingly refused to disqualify myself [70].
234 Mr Lashansky applied for Murphy JA to be disqualified because he had appeared as counsel for one of the parties in 2003 in Ridout when, for a time, Mr Lashansky had been on the record for the unsuccessful party [73] - [75].
235 On those findings, the pursuit of the appeal was without reasonable ground. The separate applications for each of the appellate judges to recuse himself for bias was also without reasonable ground.
236 I have at various points stated where I am satisfied that a particular application was vexatious as an abuse of process, or where pursued without reasonable ground, or so as to cause delay, harass or annoy.
237 In this application, I believe it is proper to also consider the conduct of the proceedings overall.
238 First, there are many examples of attempts to revisit questions that had been determined in other proceedings. In affidavits, interlocutory applications, and submission, Mr Lashansky sought repeatedly to question both the conduct and the findings of the Disciplinary Tribunal. Subsequently, he questioned the decision of the Full Court in dismissing his appeal and ordering his removal from the Roll of Practitioners. These decisions could not be challenged in this way, and in this regard, his conduct of the various proceedings was an abuse of process.
239 Second, a litigant may sometimes properly apply to restrain the solicitor for an opposing party. The principles, and relevant examples, are conveniently set out by EM Heenan J in Clambake Pty Ltd v Tipperary Projects Pty Ltd [No 6] [2009] WASC 200, and it is unnecessary to repeat them. Over the several actions which I have considered in this application, Mr Lashansky applied to have the court disqualify two different firms from acting for the Board or Complaints Committee, senior counsel acting for those parties, and the solicitors for the liquidator in CIV 1768 of 2004. He threatened or attempted to institute contempt proceedings against solicitors and counsel. He attempted to bring proceedings to discipline counsel who had appeared against him before the Disciplinary Tribunal and in LPD 1 of 2001, as well as practitioners employed by the Board and the Complaints Committee. None of these attempts was found to have substance.
240 Third, Mr Lashansky repeatedly alleged bias and a conspiracy to injure him on the part of the judiciary in this State, and those members of the profession engaged in regulating legal practitioners. This is in addition to specific allegations of bias against, at least, four members of the court of appeal; Beech J; the registrar of the Court of Appeal; and the acting master. None of those allegations has been held to have any substance in any of the proceedings in which they were made.
241 I would uphold the applicant's claim that Mr Lashansky has made scandalous and vexatious allegations of judicial and legal impropriety with no substance. That would itself support a finding under par (c) of the definition of vexatious proceedings. The inference I draw from the extent to which Mr Lashansky repeatedly made these allegations and applications is that they were instituted or pursued for a wrongful purpose - to harass or annoy those who appeared or decided against him.
242 Fourth, I have outlined many instances in which matters were delayed by the failure of Mr Lashansky to comply with orders of the court. Springing orders were made in FUL 7 of 2001, CIV 1768 of 2004, CIV 1437 of 2008 and CACV 6 of 2012. When FUL 48 of 2004 was decided, Mr Lashansky had still not prepared a draft appeal book index, had not attended the appointment to settle the index, and had not entered the appeal for hearing. The appellant's case had still not been filed at the time of the hearing in CACV 127 of 2009.
243 Mr Lashansky also consistently failed to comply with the rules of court for preparation of documents, particularly in the Court of Appeal.
244 Fifth, the number of times in which Mr Lashansky filed evidence and documents which were found to be irrelevant, and the volume of that material, leads me to find that his conduct overall was such as to be seriously and unfairly burdensome on the other parties to the litigation. This is particularly so where the same persons (the Board or its officers, or the Complaints Committee) were parties to all of the proceedings. In the submissions he made, either in writing or orally, Mr Lashansky was also unable to stay within accepted concepts of relevance. This causes unnecessary delay and wastes the resources of the court and the parties.
245 Mr Lashansky has also, on occasion, made scandalous accusations against both counsel and solicitors. Within his affidavits and submissions, Mr Lashansky was at times insulting to those appearing against him, and unconstrained in his personal attacks on others. A party may have cause to complain about the conduct of an opponent. Mr Lashansky did so repeatedly, in a manner that was calculated to offend and annoy. Some examples are matters of grave discourtesy or worse: he has referred in an affidavit to one of his opponents as a 'serial liar'; and in oral submissions to the solicitors for the opposing party as 'mongrels'. There are many, many other examples of scandalous accusations against other parties or their legal representatives, which it is unnecessary to repeat. None of those allegations was found to be relevant or was sustained. That is not a proper use of court proceedings. The extent to which it has been done in these proceedings would bring the administration of justice into disrepute.
246 In his oral submissions, Mr Lashansky argued that the evidence against him did not show that applications or proceedings brought by him had been struck out as an abuse of process, or that affidavits or other documents had been struck out for that reason. That is so. But I am satisfied that, even if not objected to at the time, they were an abuse.
247 There are also numerous occasions when the court has commented on patent defects in the proceedings and documents before them:
(1) In CACV 38 of 2009, referring to the appellant's case, the court said it included grounds that were not grounds at all, grounds and submissions that went beyond the matters raised in the proceedings, and 'orders wanted' that related to other causes of action, not the subject of the primary proceedings. The court concluded that it was not possible to identify proper grounds of appeal that would have a reasonable prospect of success, and that Mr Lashansky could not obtain the relief that he sought.
(2) In FUL 7 of 2001, the court referred to his inability to appreciate what material might be relevant to his appeal, how to make an application in proper form, and to his 'habit of filing prolix and repetitive materials'. It referred also to the registry properly refusing to accept an application, including a contemnor summons regarding senior counsel for the Complaints Committee, and an application for leave to bring a private prosecution against him.
(3) In FUL 48 of 2004, McKechnie J described the motion filed by Mr Lashansky seeking relief against parties who were not parties to the appeal as 'entirely inappropriate' and 'probably incompetent'.
(4) In CACV 69 of 2010, Newnes JA described the grounds of appeal as 'a lengthy mixture of complaints, assertions, observations and submissions', and his submissions as falling well short of what was required by the Supreme Court (Court of Appeal) Rules. He further found that the alleged errors were without substance.
(5) In CACV 6 of 2012, the court described the affidavit filed in the appeal as 'simply incoherent'. Referring to a document attached to the affidavit, the court continued 'it is impossible to imagine how this document, or indeed the article in its entirety, might be thought relevant'.
248 Looking at this course of litigation overall, as well as particular instances I have referred to, I am satisfied that Mr Lashansky has conducted vexatious proceedings.
249 Because I am satisfied that the criterion in s 4(1)(a) has been met, it is not necessary to consider the alternative criterion in s 4(1)(b) - whether it is likely that Mr Lashansky will institute or conduct vexatious proceedings. The question remains whether the court should in its discretion make an order, and the extent of the restraints that might be imposed.
250 The following matters, in my opinion, are important to the exercise of discretion.
251 First, the court must take into account that Mr Lashansky, but for any restriction imposed on him, has a right to commence proceedings to assert his rights. That is a fundamental right in a free society. The effect of an order is tempered by the fact that the 2002 Act does not absolutely deny to a person against whom an order has been made the right to conduct proceedings. Rather, it introduces the 'filter' that the court must first be satisfied that the proceedings are not vexatious, and that there is a prima facie ground for them: s 6.
252 Second, the proceedings commenced by Mr Lashansky, on first sight, appear to be related to a particular subject matter: the proceedings brought against him by the Board, resulting, ultimately, in his removal from the Roll of Practitioners. That area of dispute may now be exhausted. And Mr Lashansky said in submissions before me that his abiding distrust of the judiciary in this state would deter him from attempting to commence further proceedings.
253 While Mr Lashansky may not presently intend to institute an action in this court, he has shown in the past a tendency to introduce issues that are unrelated to the proceedings in which he was then engaged. Even in these proceedings, which were concerned solely with the Vexatious Proceedings Restriction Act, Mr Lashansky sought to range into matters of agriculture, climate change and other diverse topics. Battles fought and won or lost many years ago, such as the Colonnade litigation, are not forgotten. An order would impose limits on his ability to institute interlocutory proceedings, or unmeritorious appeals, should he be joined in an action commenced by another party.
254 I also take into account that the criterion that a person is likely to institute vexatious proceedings in the future is an alternative criterion. The discretion of the court is enlivened if the criterion in s 4(1)(a) is satisfied.
255 Third, it is not necessary under the 2002 Act to show repetition or frequency. But they are relevant to whether restraints should be imposed and the nature of the restraints. The repetition and frequency with which Mr Lashansky has engaged in conduct that is vexatious support the inference that he is likely, unless restrained, to conduct litigation in a similar way in the future.
256 Fourth, Mr Lashansky has shown the same type of conduct that led to this application in his conduct of these proceedings. He failed to comply with time limits. He filed no substantive affidavit and no submissions, and repeatedly applied for adjournments. At the last, when his final submissions were due, he had one of his business associates advise the court that he was in South Africa and would not meet the time limit that he had agreed to.
257 He also continued a recurring theme from earlier litigation, with a personal attack on those who might appear against him, and an allegation of bias against the court. He foreshadowed a contempt application against counsel for the applicant and, in a document filed before the first day of the hearing, suggested action against a wider range of people.
258 Last, I should also take into account, as Le Miere J observed in Attorney General v Michael [2005] WASC 203:
The institution or conduct of unmeritorious litigation will have an emotional and financial impact on the other parties to the litigation. Innocent parties may be dragged through the courts for a decision made at the end of a long legal road that the claim never had any legal merit in the first place. The vindicated party frequently has no practical opportunity to recoup even court assessed costs, let alone actual out of pocket costs. And there is no redress for the loss of time and the aggravation of futile legal proceedings. The Act is intended to provide protection to a person who maybe the target of vexatious litigation. Furthermore, the time of the court is unreasonably occupied in dealing with vexatious litigation [144].
259 I have considered whether a more restricted order, limited by reference to proceedings of a particular class, would meet the requirements of the 2002 Act. The restraint imposed should not exceed what is needed. Ultimately, however, I am satisfied that, unless restrained, Mr Lashansky may institute proceedings against those he believes may have slighted him. Further, confining an order to proceedings of a particular class may prove futile when Mr Lashansky has demonstrated many times a tendency to introduce unrelated issues into an otherwise limited dispute.
260 An order should be made under s 4(1)(d) prohibiting Mr Lashansky from instituting any proceedings without the leave of a court or tribunal, as the case requires.
CITATION : ATTORNEY GENERAL FOR WESTERN AUSTRALIA -v- LASHANSKY [No 2] [2015] WASC 417 (S)
Vexatious Proceedings Restriction Act 2002 (WA) - Costs - Turns on own facts
Rules of the Supreme Court 1971 (WA), O 59 r 4, O 59 r 5, O 66 r 1
The respondent pay the applicant's costs of the application filed 4 October 2013, to be taxed
1 ALLANSON J: On 5 November 2015, I delivered reasons for judgment on the application by the Attorney General for Western Australia for orders under the Vexatious Proceedings Restriction Act 2002 (WA). On 19 November 2015, I made an order pursuant to s 4 of that Act, and further ordered that the parties have until 10 December 2015 to file and serve any written submissions on the costs of the application, with the question of costs to be determined on the papers.
2 The applicant filed submissions on 9 December 2015, seeking an order that Mr Lashansky pay the costs of the application. Mr Lashansky has not filed any submissions. On 10 December, the last day for the filing of submissions, Mr Dryka (an associate of Mr Lashansky) sent an email to my associate, in these terms:
I refer to the above matter where Mr. Lashansky is obliged to file submissions by today.
Please be advised that Mr. Lashansky is in the process of applying for a stay, alternatively an extension of time in which to file submissions.
The reasons for this are well known.
Mr. Lashansky further requests that the State Solicitor make Discovery of the Time Sheets for all of the Applicant's solicitors involved in this matter in order to reply to the material in the outline of submissions filed yesterday on behalf of the State Solicitor.
With respect, Justice Pullin in his referral stated that the matter was to be dealt with as a matter of urgency in May 2002.
The application in this smatter was filed nearly 17 months later!
The prime affidavits that Mr Lashansky intends to rely on in response to your submissions are the affidavit filed in matter CIV 1768 of 2004 on 23 February 2005 & the affidavit filed in this matter during April 2015.
Kindly take this email correspondence as evidence of conferral under Order 59 rule 9.
3 On 10 December, two documents were lodged at Central Office on behalf of Mr Lashansky.
4 The first, on its face, is a chamber summons returnable on 16 December 2015 at 10.00 am (a time chosen by Mr Lashansky, although he later sent an email and medical certificate regarding his unfitness to attend on that day). The document does not comply with O 59 r 4 of the Rules of the Supreme Court 1971 (WA). Nor could it be served within the time prescribed by O 59 r 5 for a hearing on 16 December, and no application has been made to allow a shorter period of service. No attempt was made to ascertain the availability of either the applicant's representatives or the court on the date specified by Mr Lashansky.
5 The orders sought in the summons include that 'proceedings in this matter be stayed/and or a further extension of time be granted to the Respondent to file submissions in answer to the submissions of the Applicant filed on 9 December 2015 in this matter': order 2. Orders 3 and 4 are not in the form of orders: both are arguments or submissions. Orders 5, 6 and 7 seek discovery of a confidential settlement entered into by the State in an unrelated matter; an order for the examination of the solicitor who had carriage of the matter for the applicant; discovery of the applicant's time sheets; and a stay until the applicant is 'placed in funds by Legal Aid Western Australia'.
6 The second document is described as a 'memorandum supporting waiver of conferral'. The document is argumentative and irrelevant to the question of conferral or its waiver.
8 The way in which Mr Lashansky has approached the order for submissions on costs is consistent with the way in which he has conducted the action throughout. It is unacceptable.
9 The costs of and incidental to all proceedings in court are in the discretion of the court: Supreme Court Act 1935 (WA) s 37(1). The discretion must be exercised judicially, but it is otherwise unconfined: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [21] [22], [134]; Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 540, 558, 562, 568. While the discretion to award costs cannot be shackled, and considerations which might guide the exercise of the discretion cannot be rigidly applied, the authorities offer guidance on the proper exercise of the discretion. Consistency in the exercise of judicial discretion is important in the administration of justice. Giving proper consideration to the rules of court and decisions in other cases is an important measure in ensuring consistency.
10 The general rule in O 66 r 1 of the Rules of the Supreme Court, while it is expressed not to limit the general discretion conferred on the court, is that the court will generally order that the successful party to any action or matter recover his costs.
11 In the present matter, the applicant has been wholly successful. The applicant also submits that Mr Lashansky failed to file any submissions or evidence, did not formally develop any case in response to the application, and protracted the proceedings by reference to irrelevant material, filing interlocutory applications that were without merit, and failing to comply with orders to file submissions and evidence. Those submissions accurately reflect the way in which Mr Lashansky responded to the application.
12 The email sent on behalf of Mr Lashansky is not persuasive to the contrary. In particular, the request for discovery of time sheets is irrelevant. Costs will be taxed. I am concerned only with who is liable to pay them.
13 I have considered whether the nature of the jurisdiction exercised by the court under the Vexatious Proceedings Restriction Act is such that costs should not be awarded. I note that an order for costs by the trial judge in a matter under the Act was upheld by the Court of Appeal in Michael v Western Australian Attorney General [2006] WASCA 123. Costs on appeal were also made on appeal in proceedings relating to the Act in Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231 (S). Costs orders were made at first instance in The Principal Registrar of the Supreme Court v Chin [2012] WASC 7 and Attorney General for Western Australia v MTI [2014] WASC 303.
14 In the circumstances, I am satisfied this is a matter where the costs should be awarded to the successful party. I will order that the respondent pay the applicant's costs of the application filed 4 October 2013, to be taxed.
(1983) 153 CLR 338
(2009) 83 ALJR 384
(1993) 177 CLR 378
(2011) 86 ALJR 117
(2006) 226 CLR 486
(1990) 170 CLR 534
(1908) 6 CLR 469
(2006) 226 CLR 256
(1989) 168 CLR 23
(2009) 239 CLR 75
(1995) 184 CLR 19
(1994) 181 CLR 251
(2000) 2 VR 436
(1998) 193 CLR 72