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[2011] WASCA 42
General information, not legal advice.
Court of Appeal (WA)
2011-02-23
Pullin JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : LASHANSKY -v- LEGAL PRACTICE BOARD [2011] WASCA 42
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Citation : LASHANSKY -v- LEGAL PRACTICE BOARD [No 2] [2010] WASC 159
Practice and procedure - Application for injunction to restrain solicitors acting in appeal - Whether Court of Appeal has power to issue injunction - Whether appeal should be dismissed under r 43(2)(g)(i) and r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA) - Grounds of appeal fail to comply with Rules - No arguable grounds of appeal
British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2
Fay v Roads and Traffic Authority of New South Wales (1990) 20 NSWLR 665
Jesasu Pty Ltd v Minister for Mineral Resources (1987) 11 NSWLR 110
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Lashansky v Legal Practice Board [No 2] [2010] WASC 159
Legal Practitioners Complaints Committee v De Alwis [2006] WASCA 198
Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211
McVeigh v Linen House Pty Ltd [1999] VSCA 138; (1999) 3 VR 394
Ridout Nominees Pty Ltd v Commonwealth Bank of Australia [2003] WASCA 158
Sergi v Director of Public Prosecutions [1991] NSWCA 244
Vakauta v Kelly (1988) 13 NSWLR 502
1 PULLIN JA: I agree with Newnes JA for the reasons he gives that leave to appeal should be refused.
2 During the hearing the appellant made an oral application that I disqualify myself. I refused to do so. These are my reasons for that decision. The appellant advanced two reasons in support of his application.
3 The first was because of a statement I made during the course of my reasons for decision in Ridout Nominees Pty Ltd v Commonwealth Bank of Australia [2003] WASCA 158 [17]. That was not an appeal in which the appellant was a party but he had at some time, been on the record for the plaintiff. The appellant did not appear as counsel on the hearing of that appeal. In my reasons I said:
When the case was conducted at trial before Wheeler J, the appellants were represented by solicitors and experienced senior counsel. When the appeal was instituted on 17 April 2000, the appellants were represented by a solicitor, Mr Robert Lashansky, and he was involved in the preparation of the appeal book index. The appeal books prepared in accordance with that index consisted of 17 volumes. On 27 November 2000, Mr Lashansky was suspended from practice by the Legal Practice Board. Even though Mr Lashansky could then no longer act, he remained on the court record. As a result, the respondent filed a motion for directions, which came on for hearing before Murray J on 24 May 2003. Shortly before that, on 8 May 2003, a document entitled 'Appellants' Outline of Submissions', signed by Mr P Ridout and Mr C Ridout, was sent to the Court. The submissions bore little or no relationship to the grounds of appeal, cross-appeal, or notice of contention [17].
The appellant asserted that after he had been suspended from practice he did not remain on the record and that this error meant that I should disqualify myself in this hearing (ts 30).
4 The second reason was that at the time the appellant was suspended, I was the Chairman of the Legal Practitioners Complaints Committee (ts 38 - 39).
5 The test to be applied in determining whether a judge should be disqualified from sitting to determine a case by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to determine: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 492. The plurality in that case pointed out (493) that in applying the test two things need to be remembered: the observer is taken to be reasonable, and the person being observed is 'a professional judge whose training, tradition and oath or affirmation requires the judge to discard the irrelevant, the immaterial and the prejudicial' (Vakauta v Kelly (1988) 13 NSWLR 502, 527). This test has recently been affirmed by the High Court in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2 [78] - [84], [132] and [139].
6 I have not checked the Ridout file to ascertain whether the appellant did or did not remain on the record because even if the fact was misstated, no reasonable observer could conclude that there was any apprehension of bias because of what I said in the Ridout case. What was said was said in the course of explaining the procedural background leading to the hearing of the case and which was not related to the substantive issues in the case.
7 As to the second point, the position is as follows: I was the chairman of the Legal Practitioners Complaints Committee for many years before I was appointed as a judge of the Supreme Court in September 2001. The Legal Practitioners Complaints Committee consisted of members of the legal profession and lay representatives. There was a statutory Law Complaints officer with certain statutory powers set out in the Legal Practitioners Act 1893 (WA).
8 At the time of my appointment, my memory is that the Legal Practitioners Complaints Committee sat in two panels. Each panel would meet regularly, about monthly, and consider an agenda of complaints against legal practitioners. If I ever considered any aspects of Mr Lashansky's conduct, I now have no memory of my involvement. However, even if I did, Mr Lashansky did not contend that I was involved and did not contend I had any particular knowledge. His contention was that merely because I had been chairman of the Legal Practitioners Complaints Committee when steps were taken against him that I should recuse myself. Mr Lashansky was suspended by the Disciplinary Tribunal, not the Complaints Committee. The Complaints Committee had no power to suspend. Members of the Complaints Committee could not be members of the Disciplinary Tribunal.
9 Mr Lashansky's application is similar to one which was made by the appellant when the Full Court was hearing the motion by the Legal Practitioners Complaints Committee for orders that Mr Lashansky be struck off the roll of practitioners: see Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211. I was not a member of that court. The members of the court on that occasion were Wheeler JA, McLure P and EM Heenan J. The appellant submitted that the court appointed to hear the motion be comprised of 'judges other than current or past members of this court' [2]. There were two strands to his objections. The first was that he had been treated so badly in the past in a number of decisions of the court that he considered that any reasonable person would come to the conclusion that he would not be dealt with fairly, and the second was that in his words 'too many of the people that sit on this court ... have had links to the Legal Practitioners Complaints Committee' [2]. It was therefore his submission that there was a reasonable apprehension that any member of the court would be biased in favour of the Committee. The court in its reasons for decision dealt with the objection to the coram in the following way:
To take the second of the objections first, it was apparent however from the way in which the respondent developed this application that it was one which he made selectively. At 156 of the transcript there occurs the following exchange:
Too many of the people that sit on this court - too many of the honourable justices - have had links to the Legal Practitioners Complaints Committee. We have had his Honour Len Roberts-Smith J sign the Colonnade reference in R12 of 2000. We have had Mr Michael Buss attempt to strike me off on 5 December 2003. He is now sitting as a judge. We have had his Honour Pullin J, who is a former chairman of the committee, appointed to the bench. Then, ma'am, it comes into the issue as to the lack of respect. Her Honour Justice - - -
EM HEENAN J: Mr Lashansky, if you take this objection to Wheeler JA, you can take it to me. I was a member of the Legal Practice Board and of the Legal Practitioners Complaints Committee from 1985 until I was appointed to this court in 2004. I was then one of Her Majesty's counsel and like every Queen's Counsel in this state, I was a member of the board. There is nothing in the least way unusual that judges of this court have been members of the Legal Practice Board or the complaints committee or the Barristers Board before that. Indeed, it's to be expected, but that doesn't seem to me to be a reason to disqualify myself from hearing this application.
LASHANSKY, MR: No, sir, because you happen to be one of the judges who actually helped me in my absence. On 31 October you turned around and said to Mr Goetze, 'But this problem is with the report.' Now, Mr Goetze at the end of the day didn't seem to take that on board, didn't seem to take anything on board so, sir, at the end of the day - - -
In reality, it appears that this objection is no more than a variation on the main theme that the respondent had been treated badly in the past and wished to be dealt with by judges whom he considered would treat him well. The difficulty with both limbs of the submission was that neither of them addressed in any sensible way the test for apprehended bias applicable in such a case.
It is convenient to set out the relevant principles, and to notice the way in which those principles were applied, as they appear in Legal Practitioners Complaints Committee v De Alwis [2006] WASCA 198, in which a rather similar application was made by another legal practitioner the subject of a reference. At [64] - [68], the Court made the following observations:
'In a case such as the present where there is no allegation of actual bias, the question whether a judge who is confident of his own ability to determine the case before him fairly and impartially on the evidence should refrain from sitting because of a suggestion that the views which he has expressed in his judgment in some previous case may result in an appearance of pre-judgment can be a difficult one involving matters 'of degree and particular circumstances may strike different minds in different ways' (per Aickin J in Shaw [Re Shaw; Ex parte Shaw (1980) 55 ALJR 12 at 16]). If a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre-judgment or bias, he should, of course, refrain from sitting. On the other hand, it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court.'
'Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.'
Applying those observations to the present case, the respondent in effect suggests that because he has been unsuccessful in most (although not all) of the applications which he has made in this Court, a fair-minded observer would have a reasonable apprehension of bias. The difficulty with that submission, of course, is that the reasons for his lack of success
might more probably be thought by a fair-minded observer to be related to the merits of the applications made. That is particularly so, in circumstances where the respondent has a right either to appeal (in the case of decisions of single judges of this Court) or to apply for special leave to appeal (in the case of decisions of the Full Court) but has either chosen not to exercise that right or has been unsuccessful on appeal, as has been the case with this respondent.
So far as any association with the Legal Practitioners Complaints Committee is concerned, none of the three Judges hearing this motion has had an involvement with any of the complaints against the respondent [4] - [8].
10 The quoted passages from Legal Practitioners Complaints Committee v De Alwis [2006] WASCA 198 are of particular relevance. As a result, no reasonable observer could consider that there would be any apprehension of bias when considering the issue in this case which was about whether or not Beech J should, or should not have dismissed Mr Lashansky's application to remove from the inactive cases list an action he began in 2004.
11 For those reasons I refused to disqualify myself from sitting.
12 NEWNES JA: This appeal comes before the court on the return of a registrar's notice to attend dated 23 December 2010, for consideration of three matters:
(1) the appellant's application dated 7 September 2010, in substance for an injunction to restrain the first respondent's solicitors from continuing to represent the first respondent;
(2) to consider the first respondent's application dated 8 September 2010, in substance for an order that the appellant be refused leave to appeal and the appeal be dismissed as incompetent;
(3) for the appellant to show cause why the appeal should not be dismissed under r 43(2)(g)(i) and (ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules).
13 It is necessary, before turning to those applications, to say something about the appeal itself. The appellant seeks leave to appeal against an interlocutory decision of Beech J who dismissed the appellant's application to remove an action, CIV 1768 of 2004, from the Inactive Cases List: Lashansky v Legal Practice Board [No 2] [2010] WASC 159. The appellant was the plaintiff in the action.
14 At the relevant time, O 29A r 18A of the Rules of the Supreme Court 1971 (WA) provided that if no procedural step was taken in a case for 12 months by any party to the case, the case was deemed to be inactive unless a judge, master or case management registrar ordered otherwise. Order 29A r 19 provided, relevantly, that where a case was deemed to be inactive under r 18A, the principal registrar must put the case on the Inactive Cases List and give all parties to the case written notice that it was on the Inactive Cases List and of the effect of O 29A r 21. Rule 21 provided that a case which had been on the Inactive Cases List for six continuous months was taken to have been dismissed for want of prosecution.
15 On 24 December 2009, a letter, signed on behalf of the principal registrar, was sent to the parties informing them that, on 24 December 2009, CIV 1768 had been placed on the Inactive Cases List and informing them of the effect of O 29A r 21.
16 By a chamber summons dated 18 June 2010, the appellant applied, among other things, for an order removing the case from the Inactive Cases List or leave to set aside the entry of the case on the Inactive Cases List as irregular. The appellant advanced three principal contentions as to why the entry of the case on the Inactive Cases List was irregular. They were, in short:
(b) the case was placed on the Inactive Cases List as a result of false statements in a letter dated 16 December 2009 from the first respondent's solicitors to the principal registrar; and
(c) the letter of 24 December 2009 notifying the parties that the case had been placed on the Inactive Cases List was signed, not by the principal registrar, but by an associate and it was therefore to be inferred that the associate rather than the principal registrar had placed the case on the Inactive Cases List.
17 In an affidavit filed in support of the application, the appellant referred to steps that had been taken in other proceedings he had instituted in the court, being LPD 3 of 2000, in support of his contention that the action had not been inactive for 12 months. It appears that the appellant had expected or hoped that the outcome of LPD 3 would overcome any necessity to pursue CIV 1768. The primary judge, however, concluded that nothing that had occurred in LPD 3 amounted to the taking of a procedural step in CIV 1768 and, accordingly, that CIV 1768 had been inactive for more than 12 months prior to 24 December 2009.
18 His Honour also rejected the appellant's allegation that CIV 1768 had been placed on the Inactive Cases List as a result of a false statement in the letter from the first respondent's solicitors of 16 December 2009. In that letter (which appears to have been copied to the appellant), the first respondent's solicitors said that no procedural step had been taken in the action by either party for over 12 months and that the last step was taken on 3 November 2006 when Templeman J had determined the action in part by finding that the appellant was entitled to a lien over certain funds and to payment of some of those funds. The appellant alleged that the statement in the letter that the action had been inactive since 3 November 2006 was false because the appellant had filed an application for an injunction and associated documents in April 2007.
19 The primary judge considered that the letter of 16 December 2009 was not material to the action being placed on the Inactive Cases List. He pointed out that even if the statement that the action had been inactive since 3 November 2006 was incorrect, it was clear on the appellant's own evidence that no step had been taken since April 2007. That period of inactivity (some 32 months, rather than 37 months) was more than a sufficient basis for the matter to be placed on to the Inactive Cases List.
20 The primary judge found there was no substance in the appellant's submission that because the letter of 24 December 2009 to the parties was signed by an associate on behalf of the principal registrar, it should be inferred that the associate, rather than the principal registrar, had placed the case on the Inactive Cases List.
21 His Honour refused in the exercise of his discretion to remove the case from the Inactive Cases List. His Honour noted that it appeared from the appellant's affidavit that the reason he had not pursued the case was that he believed his claim in LPD 3 would avoid the need to do so. That belief was, in his Honour's view, without any reasonable basis, but in any event it was finally dashed in February 2010 when the appellant's appeal against the dismissal of LPD 3 was itself dismissed. The primary judge noted that some four months had then passed before the appellant took any step to have CIV 1768 removed from the Inactive Cases List. No explanation was offered for that delay. His Honour also noted that the appellant had provided no evidence about the state of preparation of the appellant's case in the action or any proposal to progress the action by a program of identified steps. His Honour concluded that there was no evidence of a commitment to progress the action to hearing.
22 Against that background, I turn to the appellant's application of 7 September 2010 to restrain the solicitors for the first respondent from continuing to represent it in the appeal.
23 The application is supported by an affidavit sworn by the appellant on 7 September 2010. Much of the affidavit has nothing to do with the application to restrain the first respondent's solicitors or even the substance of the appeal itself. A good deal of it is devoted to ventilating other complaints the appellant has against the first respondent. So far as it appears to have any relevance to the appellant's current application, it refers to what are alleged to be 'obvious and blatant lies' contained in the letter from the first respondent's solicitors of 16 December 2009. That intemperate expression is clearly a reference to the statement in the letter that the action had been inactive since 3 November 2006.
24 This point can be disposed of quite shortly. The allegation that the first respondent's solicitors deliberately sought to mislead the court has no foundation whatsoever in the evidence and there is no reason to believe that the solicitors deliberately, rather than inadvertently, misstated the position. Whether the period of inactivity was 37 months or 32 months was plainly immaterial. In either event the period was vastly in excess of that contemplated by the rules and, pursuant to O 29A r 19, the principal registrar was required to place the case on the Inactive Cases List. Moreover, it is not difficult to understand how an error of such a nature might have occurred in circumstances where the first respondent's current solicitors were not acting for the first respondent at the time the April 2007 documents were filed. The first respondent's current solicitors were not appointed until two years later, in April 2009. According to an affidavit filed on behalf of the first respondent's current solicitors, at that time they received four volumes of court documents in CIV 1768 from their predecessor. The deponent (who was the author of the letter) says the April 2007 documents were not in those volumes and he did not become aware of them until shortly after 23 June 2010.
25 The allegation that the solicitors deliberately misled the court cannot be accepted and the application for an injunction must be dismissed on that ground alone. It is unnecessary to consider whether, were such an allegation made out, it would entitle the appellant to the relief sought.
26 In light of my conclusion on the merits of the application, it is also unnecessary to consider the jurisdiction of the Court of Appeal to grant an injunction to restrain solicitors from acting for a party in an appeal. The jurisdiction of the Court of Appeal is set out in s 58 of the Supreme Court Act 1935 (WA). The jurisdiction conferred there is expressed to be subject to any other provision of the Act or rules of court. While neither s 58 nor any other provision of the Act or rules of court specifically confers jurisdiction on the Court of Appeal to grant an injunction, there are decisions in other jurisdictions which suggest that a Court of Appeal, as part of the Supreme Court, has jurisdiction to grant an injunction of the nature sought: McVeigh v Linen House Pty Ltd [1999] VSCA 138; (1999) 3 VR 394 [28], [33]; and see Jesasu Pty Ltd v Minister for Mineral Resources (1987) 11 NSWLR 110, 114, 123; Sergi v Director of Public Prosecutions [1991] NSWCA 244, 6; Fay v Roads and Traffic Authority of New South Wales (1990) 20 NSWLR 665, 668 - 669, 671.
27 Whether that is the position in this court is, in my view, more appropriately left to another occasion, when full argument might be heard on the matter.
28 I turn then to the remaining applications. It is sufficient for present purposes to deal only with the third application, the notice to the appellant to show cause why the appeal should not be dismissed under r 43(2)(g)(i) and r 43(2)(g)(ii) of the Court of Appeal Rules. That effectively supersedes the first respondent's application of 8 September 2010.
29 Those rules provide, relevantly, that the court may dismiss an appeal if none of the grounds of appeal has a reasonable prospect of succeeding: r 43(2)(g)(i), or the appellant has not obeyed the rules: r 43(2)(g)(ii). The grounds of appeal are set out in the appellant's case, which was filed on 30 November 2010. 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 in 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.
30 On the hearing of the appeal, counsel for the first respondent acknowledged, however, that it was possible to extract from the appellant's grounds of appeal some matters which, although they were not proper grounds of appeal in form, at least identified issues to which the first respondent could respond. The following paragraphs, stripped of their verbiage, appear to assert, in effect, that the primary judge erred:
(1) in finding that the action was properly entered on the Inactive Cases List when matters were outstanding in associated litigation in LPD 3 (par 29);
(2) in finding that the action had validly been placed on the Inactive Cases List, when he should have found that it had not been placed on the Inactive Cases List by the principal registrar as required by O 29A r 19(1) but by an associate (par 30);
(3) in finding that the appellant had evinced an intention not to proceed with the action expeditiously in circumstances where the delays in the action were due to others (par 35);
(4) in taking into account the absence of a statement of claim when an order had been made in LPD 3 that particulars of claim be filed by the appellant (par 36);
(5) in finding that he could make orders in the action when the action had not been entered on the commercial and managed cases list and the action could only be case managed by the principal registrar (par 37); and
(6) in finding that any application to remove the matter from the Inactive Cases List had to be determined before the expiration of six months, whereas the time for the filing of such an application could be extended (par 40).
31 It is the case, as counsel for the first respondent argued, that the submissions in support of the grounds of appeal do not advance in any significant way any of those assertions and, in my view, the alleged errors are without substance.
32 The finding of the primary judge that no step had been taken in the case for 12 months was plainly correct. The fact that the appellant may have been taking steps to pursue related relief in LPD 3 does not alter the position.
33 There is no merit in the contention that because the letter notifying the parties that the matter had been placed on the Inactive Cases List was signed by an associate on behalf of the principal registrar, it should be inferred that the case was placed there by the associate rather than the principal registrar. That the letter was signed on behalf of the principal registrar is evident from the fact that the associate's signature appears above the typed words 'Principal Registrar' and is accompanied by the well-recognised abbreviation 'pp'.
34 Nor is there any merit in the appellant's complaint that the primary judge failed to take into account that the delays in the case were due to others. How it came about that no steps had been taken for 12 months was irrelevant to the operation of O 29A r 18A and r 19. Moreover, the delays to which the appellant referred were delays in LPD 3, not delays in CIV 1768. As his Honour pointed out, the fact that the appellant was pursuing LPD 3 did not provide a reasonable basis for the failure to take any step in CIV 1768.
35 The argument that the primary judge was precluded from making any orders in the case because it was being case managed by the principal registrar reflects a profound misunderstanding of the case management system in this court. Nothing in the rules prevented a judge from making orders in the case at any time.
36 Finally, nothing turns on the question of whether an application to remove a case from the Inactive Cases List had to be made within the period of six months before the case was taken to have been dismissed for want of prosecution. The appellant's application was determined by the primary judge within that six month period.
37 In the circumstances, the only issue which arises on the registrar's notice to show cause under r 43(2)(g)(i) and r 43(2)(g)(ii) of the Court of Appeal Rules is whether the appellant should be given an opportunity to file an amended appellant's case, on the basis that he may be able to put it in proper order and formulate an arguable ground, or grounds, of appeal.
38 While some indulgence is ordinarily given to litigants in person in that respect, the appellant stands in a rather different position as he practised as a solicitor for a number of years before he was suspended from practice on 27 November 2000. (He was ultimately struck off the role of practitioners by order of the Full Court made on 5 September 2007.) Moreover, since the appellant was suspended he has been involved in several lengthy proceedings in this court on his own behalf, involving a number of appeals, so it is not a situation where he might be expected to have grown unfamiliar with the practices and procedures of the court. Despite that, 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.
(1999) 3 VR 394
(1983) 151 CLR 288
(1990) 20 NSWLR 665
(2000) 201 CLR 488
(2000) 205 CLR 337
(1987) 11 NSWLR 110
(1988) 13 NSWLR 502
(2003) 27 WAR 554
(1989) 167 CLR 568
(1980) 55 ALJR 12