Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : LASHANSKY -v- THE LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA [2012] WASC 16

Practice and procedure - Interim application for order disqualifying all past and existing judges from involvement in appeal dismissed - Application to reopen - No change in circumstances - Application to reopen dismissed - Application for stay of order to file appellant's case dismissed

Lashansky v Legal Practice Board of Western Australia [2011] WASCA 42

Lashansky v Legal Practice Board of Western Australia [2012] WASCA 77

1 JUDGMENT OF THE COURT: On 18 May 2012, we dismissed an interim application by the appellant seeking to reopen an earlier interim application which had been dismissed, or alternatively, seeking a stay of the order that he file and serve the appellant's case. These are our reasons for dismissing the application.

2 The appellant was formerly a legal practitioner. He was suspended from practice on 27 November 2000 and his name was struck off the role of legal practitioners on 5 September 2007.

3 The appeal arises out of an action by the appellant against the respondent in which the appellant claimed damages for deceit, conspiracy with intent to injure by unlawful means and conversion. In the action, the appellant alleged, in substance, first, that in December 1999 the respondent had misled him into distributing to his clients money over which he held a lien for outstanding legal fees; and secondly, that between December 2000 and November 2002 the supervising solicitor who had been appointed to the appellant's former legal practice had, on behalf of the respondent, removed property from the appellant's premises without authority.

4 On 19 January 2012, Acting Master Chapman entered judgment for the respondent on its application for summary judgment under O 16 of the Rules of the Supreme Court 1971 (WA).

5 The appellant filed an appeal notice on 2 February 2012.

6 On 7 March 2012, the appellant filed an interim application seeking the following relief:

1. A relief seeking a Direction [sic] that the Registrar of the Court of Appeal, Registrar Eldred is to have no further part in this appeal;
2. Other ancillary relief relating to the progression of this Appeal to determination including a Direction that the matter of the Applicant's appeal is to be progressed and determined by Justices other than current or past members of the Supreme Court of Western Australia;
3. Costs of suit; and
4. Further and/or other relief.

7 The application came on for hearing on 23 March 2012. During the course of the hearing the appellant sought to tender a copy of a page from the October 2010 edition of The Australian Journal of Agricultural and Resource Economics, which was said to be relevant to salinity problems in farming areas in Australia. The court refused to receive the document on the basis that it was irrelevant to the application.

8 That application was dismissed for reasons which were published on 3 April 2012: Lashansky v Legal Practice Board of Western Australia [2012] WASCA 77.

9 By the present application, the appellant seeks, first, to reopen his application of 7 March 2012 in order to tender the copy of the page from The Australian Journal of Agricultural and Resource Economics which the court refused to accept at the hearing on 23 March 2012, for the purpose of further argument on the application. Secondly, if that is not permitted, the appellant seeks to have an order made by the court on 8 May 2012 that the appellant file and serve the appellant's case by 22 May 2012, 'stayed' until 31 May 2012 to enable the appellant to commence proceedings in the High Court.

10 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.

11 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.

12 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.

13 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.

14 The second limb of the appellant's application, to 'stay' the order requiring the filing and service of the appellant's case, is equally without merit. The notice of appeal was filed on 2 February 2012. The appellant's case was required to be filed and served by 8 March 2012, assuming the appeal is against a final decision (the due date was 9 February 2012 if it is an interlocutory appeal). It was not filed by 8 March 2012 and, at a hearing on 9 March 2012, the court extended the time for filing and service to 10 April 2012. That time limit was not complied with. On 8 May 2012, the court ordered that unless the appellant's case is filed and served on or before 22 May 2012, the appeal stand dismissed.

15 Nothing in the appellant's affidavit provides any reason to vary the terms of the order of 8 May 2012. Whatever proceeding the appellant may wish to bring in the High Court (and the nature of the proposed proceeding does not appear from his affidavit), there is nothing to suggest that it could have any bearing on his obligation to file and serve the appellant's case. The appellant's case is required to be filed and served in order for the appeal to progress and irrespective of the constitution of this court on the appeal.

16 The order of 8 May 2012 should continue to have effect according to its terms and the appellant's application to 'stay' the order should be dismissed.

17 During the hearing the appellant referred to the fact that Pullin JA had been the chairman of the Legal Practitioners Complaints Committee in 2001. If that was by implication an application for Pullin JA to disqualify himself then that application is dismissed: see Lashansky v Legal Practice Board of Western Australia [2011] WASCA 42.

18 It was for those reasons that we dismissed the appellant's application with costs.

19 At the conclusion of the hearing the appellant was informed that the papers would be referred to the Attorney-General with a request that the Attorney consider making an urgent application for orders against the appellant under s 4 of the Vexatious Proceedings Restriction Act 2002 (WA).