Court of Appeal (WA)|2002-12-04|Before: Malcolm CJ

Lashansky v Legal Practitioners Complaints Committee [2002] WASCA 326 (4 December 2002)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : LASHANSKY -v- LEGAL PRACTITIONERS COMPLAINTS COMMITTEE [2002] WASCA 326

Appeal on new trial - Appeal - Dismissal of appeal for want of prosecution - Appellant granted an extension of time to appeal against suspension from practice as a solicitor until 22 January 2001 - Failure to serve notice of appeal in time waived - Failure to enter appeal for hearing within time, ie, by 27 April 2001 - Appellant put on notice by letters dated 9 February and 12 March 2001 that all time limits should be complied with in future - Failure to take necessary step to settle appeal book index - Application filed by respondent on 17 September 2001 to dismiss appeal for want of prosecution - Appellant did not appeal - Order made on 7 December 2001 for the draft appeal book index to be settled by 11 January 2002 and appeal entered for hearing by 1 February 2002 not complied with - Order made for a further appointment to settle index - On 20 March 2002 the Full Court ordered that the appeal be struck out unless the index was settled by 12 April 2002 and entered for hearing within seven days thereafter - Time later extended by motion to enter the appeal for hearing to 31 May 2002 - Attempted entry of appeal on 31 May 2002 rejected for want of certification of correctness - Further application for extension of time adjourned by the Master to 24 July 2002 for hearing by the Full Court - Solicitors for respondent correctly refused to sign certificate of correctness - Gross delay - Entry of appeal 15 months out of time - Grounds of appeal without merit

Rules of the Supreme Court 1971 (WA), O 63 r 7(1), r 12, O 65 r 2, r 3, r 9, r 12

1 MALCOLM CJ: On 24 July 2002 the Court was asked to resume consideration of an adjourned application by the respondent to this appeal 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.

2 On 27 November 2000, the appellant was suspended from practice as a legal practitioner following the determination of references by the Legal Practitioners' Disciplinary Tribunal ("the Tribunal") pursuant to s 29A of the Legal Practitioners Act 1893 (WA). On 29 November 2000, on the application of the respondent, the Legal Practitioners Complaints Committee ("the Committee"), McKechnie J made orders restraining dealings by the appellant in relation to his general and trust accounts. An application by the appellant dated 15 December 2000 for a stay of proceedings in relation to those orders was refused by Master Bredmeyer on 18 December 2000.

3 By an originating motion and a report to the Full Court, each dated 11 January 2001, LPD1 of 2001, application was made by the respondent to the Full Court for an order that the appellant be struck off the roll of practitioners of this Honourable Court or otherwise be dealt with pursuant to s 30(2) of the Legal Practitioners Act as the Court thought fit; and that the appellant pay the costs of and incidental to the motion to be taxed.

4 The appellant wished to appeal from the determination of the Tribunal, as he was entitled to do, pursuant to s 29B of the Legal Practitioners Act. By virtue of O 65 r 3(1) of the Rules of the Supreme Court 1971, it is provided that the appeal should be instituted by filing, within 21 days from the date of the decision against which the appeal is made, a notice of motion complying with r 4 and serving within the same time a copy of the notice of motion on each party or person on whom the notice of motion is by the rule required to be served. Order 65 r 3(2) provides that a copy of the notice of motion must be served on the Tribunal from which the appeal is brought and any person other than a person heard as a witness only who appeared before or was heard by the Tribunal on the hearing of the application. Order 65 r 9 provides that:

"(1) The appellant must not less than 6 clear days immediately preceding the day fixed for the hearing of the appeal 

(a) prepare to the satisfaction of the Registrar an appeal book containing all material relevant to the hearing of the appeal;

(b) lodge at the Central Office 3 copies of the appeal book so prepared, for the use of the Judge upon the hearing;

(2) Unless the Court otherwise orders, the costs of complying with this Rule shall be costs in the cause."

5 Rule 12 provides that:

"In so far as the ordinary practice of the Court and the rules of Court are not inconsistent with the provisions of this Order, they shall apply to proceedings under this Order with such modifications as the circumstances require."

6 On 12 January 2001, the appellant was granted an extension of time within which to appeal against the determination of the Tribunal until 22 January 2001. The notice of appeal was filed in time on 22 January, but it was not served on the respondent until 2 February 2001, although it was served on the Tribunal on 31 January 2001. The relevant party to be served was the respondent, namely, the Legal Practitioners Complaints Committee: Fordham v Legal Practitioners Complaints Committee (1997) 18 WAR 467 at 469. Notwithstanding the late service of the notice of appeal, the respondent appears to have waived any objection on that account but, by letters dated 9 February and 12 March 2001, the respondent's solicitors put the appellant on notice that the respondent required the appellant to comply with all relevant time limits in future.

7 In the meantime, by a letter dated 2 February 2001, the Associate to Registrar Powell informed the appellant and the respondent that an appointment had been listed on 15 March 2001 to settle the draft index for the appeal book, which was required to be filed by 21 February 2001. The appellant failed to comply with that time limit. As a result, by letter dated 13 March 2001, the Associate informed the appellant that the appointment to settle the index had been vacated and that a new appointment would be made when the draft index was filed.

8 By a letter to the Associate dated 15 March 2001, the appellant apologised for the delay and submitted the draft index, a copy of which was also served on the respondent's solicitors. The latter communicated their comments on the draft to the appellant by letter dated 28 March 2001. By 10 April 2001, the appellant had not sought a fresh appointment to settle the index. By a letter of that date, the respondent's solicitors required the appellant to comply with the time limit for entry of the appeal for hearing, namely, within 12 weeks of the due institution of the appeal: Rules of the Supreme Court, O 63 r 7(1). This would have required the appeal to be entered for hearing by 27 April 2001.

9 On 12 April 2001, the appellant filed an application by chamber summons for an extension of time within which to enter the appeal for hearing. On 17 May 2001, the appellant attended at an appointment to settle the appeal book index, but the respondent was not in attendance as the appellant had failed to serve the notice of appointment. A new appointment was listed for 1 June 2001. On 18 April 2001, the appellant obtained an extension of time within which to enter the appeal for hearing until 8 May 2001. By letters dated 26 April and 21 May 2001, the respondent's solicitors requested the appellant to obtain an appointment to settle the appeal book index. It is apparent from this correspondence that the appellant had failed to serve notice of the appointment made for 1 June 2001.

10 By a letter to the respondent dated 29 May 2001, the appellant referred to the postponed appointment to settle the index and its relisting on 31 May 2001. The appellant failed to attend on 31 May 2001 when he believed he was required to attend. He did not attend the actual appointment which had been fixed for 1 June 2001. By letters dated 5 June and 3 August 2001, the respondent's solicitors wrote to the appellant regarding his failure to settle the appeal book index and threatened to apply to the Full Court to have the appeal dismissed for want of prosecution.

11 No further step having been taken by the appellant, the respondent filed an application dated 17 September 2001 to dismiss the appeal for want of prosecution. There was also a further letter from the respondent to the appellant dated 20 September 2001. The application came on for hearing before the Full Court on 24 October 2001, but was adjourned as there was no attendance by the appellant and the respondent had not proved personal service of the application.

12 In the meantime, the proceedings brought by the Tribunal pursuant to s 29A(2) of the Legal Practitioners Act, the subject of the Report to the Full Court was not able to be heard pending the outcome of the appeal, although the notice of originating motion was filed on 11 January 2001 in LPD1/01. It needs to be borne in mind that there is a public interest in having the appeal disposed of in a timely manner: Said v Legal Practitioners Complaints Committee, unreported; FCt SCt of WA; Library No 950466; 7 September 1995 at 14.

13 The application to dismiss the appeal was renewed in the Full Court on 7 December 2001 when orders were made that the appellant settle the draft appeal book index by 11 January 2002, and enter the appeal for hearing by 1 February 2002.

14 The draft appeal book index was filed on 9 January 2002 but not served. The appellant was duly notified by the Associate to the Registrar that an appointment had been made at 10 am on 8 February 2002 to settle the draft index. The appellant failed to serve notice of the appointment on the respondent's solicitors. The appellant himself did not appear at the appointed time, but did attend at 11 am on 8 February. There was no appearance by the respondent. This led to the appeal being relisted before the Full Court on 11 February 2002 when orders were made that the appellant arrange a further appointment to settle the draft appeal book index. In the meantime, the respondent's application to strike out or dismiss the appeal was adjourned to the next Full Court motion day.

15 On 5 and 14 March 2002, the parties attended before Registrar Powell to settle the appeal book index. The appellant gave the solicitor for the respondent a copy of an amended index which was also given to Registrar Powell. The Registrar informed the appellant that the index did not comply with Practice Direction No 6 of 1997.

16 The appellant undertook to prepare an amended index by Friday, 8 March 2002 and the appointment was adjourned to 14 March 2002. By letter dated 12 March 2002, the solicitors for the respondent requested a copy of the draft prior to the appointment and warned the appellant that an application would be made to strike out the appeal on 20 March if the index was not settled by then.

17 At the second appointment on 14 March 2002, Registrar Powell declined to settle the index and directed the appellant to file two clean copies of an amended index which, if in order, would be settled and, if not, a further appointment would be required.

18 The appellant having failed to comply with Registrar Powell's direction, on 20 March 2002, the next Full Court motion day, the Full Court made a springing order on the application of the respondent striking out the appeal, unless the appeal book index was settled by 12 April 2002 and the appeal entered for hearing within seven days thereafter. The appellant failed to comply with this time limit. The further draft of the index was not filed by the appellant until 12 April 2002. By a letter to the Registrar dated 16 April 2002, copied to the respondent's solicitors, the appellant requested that the date for compliance in the springing order be extended, by consent, to a date 14 days after the date assigned by Registrar Powell. A further draft index was filed on 17 April 2002 and apparently served. By letters dated 18 and 19 April 2002, the respondent's solicitor informed the appellant of errors in the appeal book index. On 26 April 2002, Master Bredmeyer granted the appellant an extension of time to comply with the springing order on the basis that the index was to be settled by 15 May 2002 and the entry of the appeal for hearing was filed by 31 May 2002.

19 On 14 May 2002, Registrar Johnston settled "two clean copies of amended index" against what he believed to have been the draft corrected but not settled by Registrar Powell on 14 March 2002. On 29 May 2002, the appellant requested the respondent's solicitors to certify that the appeal books containing the documents in the index settled by Registrar Johnston were correct. By letter dated 30 May 2002, the respondent's solicitors informed the appellant of various errors in the appeal books, including the errors previously identified in letters to the appellant dated 18 and 19 April 2002. Notwithstanding this correspondence on 31 May 2002, the appellant attempted to file the appeal books and enter the appeal for hearing. The documents were rejected by the Central Office of the Supreme Court for want of certification of the correctness of the appeal books. According to the appellant, Registrar Johnston had by then formed the view that a further appointment before Registrar Powell was required which would necessitate a further extension of time.

20 On Friday, 31 May 2002, the appellant contacted the Associate to Registrar Powell to arrange a further appointment. A letter requesting such an appointment was hand-delivered to the Associate on 4 June 2002 being the next business day when the Court was open.

21 The appellant then made an application to the Master for a further extension of time to settle the appeal book index and enter the appeal for hearing. On 7 June 2002, the Master adjourned the application and referred it to the Full Court motions day on 24 July 2002.

22 The appellant maintains that in the interim an appointment made to settle the appeal book index on 25 June 2002 was abandoned despite the appellant appearing. In this respect, it appears that the appellant apparently failed again to serve notice of the appointment on the respondent's solicitors.

23 On 24 July 2002, the appellant's application for an extension of time to settle the appeal book index and enter the appeal for hearing came on before the Full Court. In addition, there was a further application by the appellant that certain documents the subject of subpoenas duces tecum served on the Law Complaints Officer, Mrs Howell, and also a Mr Jordan, be produced to the Full Court.

24 The appellant informed the Court on 24 July 2002 that he had attempted, pursuant to the springing order, to have the appeal entered for hearing by 31 May pursuant to the relevant order of the Full Court, but was unable to do so because the respondent's solicitor refused to sign the certificate of correctness of the appeal book. In my view, for reasons which are obvious, having regard to the state of preparation of the appeal book on 31 May 2002, the solicitor for the respondent was entitled to refuse to sign the certificate of correctness.

25 It was against this background that, according to the appellant, Registrar Johnston recommended that the question of settling the appeal book index and the appeal books be referred back to Registrar Powell, who had by then returned from his period of leave. It was in these circumstances that the request for the further appointment was made for 25 June 2002.

26 In an affidavit sworn on 23 July 2002 and produced to the Court at the hearing on 24 July, the appellant said that he had attended at the Registrars' chambers on 25 June. He was informed that the appointment had been cancelled as a result of correspondence received from the solicitors for the respondent informing the Registrar that the appellant was to be absent overseas from 12 July. The appellant said that he was not informed of this correspondence. Although he was originally due to travel to China, the appointment with the Registrar had been rescheduled to 16 July 2002. At that appointment the appellant asked that the appeal be entered for hearing on the basis of the appeal book index as settled by Registrar Johnston or, "out of an abundance of caution the appellant was prepared to accommodate" the minor changes that the respondent's solicitors insisted upon.

27 At the appointment on 16 July 2002, certain amendments were made to the appeal book index. The appellant told the Full Court on 24 July 2002 that these amendments were duly made and the amended appeal book index was filed for the purpose of being settled by the Registrar on 19 July 2002. Asked by the Court on 24 July 2002 what was the status of the appeal book index dated 16 July 2002, and bearing the date stamp of the Central Office of the Court of 19 July 2002, the appellant said that the index had been given to Registrar Powell "to finally settle". We were told that some documents apparently referred to as a bundle had to be unbundled and referred to separately. These were apparently documents which were now numbered 14A, 14B and 14C. According to the appellant, there was no actual deletion from or addition to the documents to be included in the appeal book. According to the appellant, only minor amendments to the index were required which did not involve amendment but rather supplementation of the documents to be included in the appeal books.

28 When the matter was before this Court on 24 July 2002, the respondent gave an undertaking to the Court that certain documents sought by the appellant from the respondent would be provided to him within the next seven days. The Court directed that the transcript of the proceedings in the Full Court on 24 July 2002 be provided to the appellant free of charge.

29 While the appellant conceded that there had been delays in the preparation of the appeal books, he submitted that there had been no material prejudice to the respondent. In my opinion, however, the appellant's delay in the preparation of the appeal and entering it for hearing is gross. As I have already indicated, the appeal should have been entered for hearing by 27 April 2001. As of 24 July 2002, the appeal had still not been entered for hearing, so that the delay was approximately 15 months. Such a delay is gross and, on the face of it, would justify the appeal being struck out for want of prosecution, particularly having regard to the proceedings before the Court to date. In Boomalli Ltd v Hake [1985] WAR 7 at 8, it was held that the discretion to extend time for the entry of the appeal is a wide one. As Burt CJ, Kennedy and Rowland JJ said at 9:

" ... the court might, in the exercise of its discretion, extend time and the discretion which it may exercise in doing so is a very wide one indeed. But it must, we think, be recognised that a successful party in litigation has a vested interest in the judgment which he has obtained, and subject to the exercise of the discretion of the court to extend time he ought thereafter be able to conduct his affairs upon the basis that that judgment is final, subject only to its displacement on and by an appeal instituted and thereafter pursued according to the time requirements of the Rules. That leads one to say that an order extending time requires that some cogent reason be advanced for his exercise and the cogency of the reasons must surely be required to increase as the extension of time which is sought increases. And in the exercise of that discretion it is, we think, important that the court have regard to the nature of and to the subject matter of the litigation in which the extension of time is sought."

30 See also Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 198 - 199 per Kennedy J; and Girando v Girando (1999) 18 WAR 450 at 455 - 458 per Malcolm CJ.

31 In the present case, having regard to the chronology summarised above, I see no cogent reason for granting any further extension of time. In any event, the appeal appears to me to be without merit.

32 The Legal Practitioners Act is silent regarding the powers to be exercised by the Full Court as an appeal of this kind, so that by virtue of O 65 r 2(d) the appeal is by way of a rehearing pursuant to O 65 r 10: D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198 at 201 per Pidgeon J; and at 205 per Ipp J.

33 However, the Full Court is not obliged to enter into a re-hearing if the grounds of appeal disclose no error on the part of the Tribunal. Turning to the merits of the appeal, it appears that all matters of fact alleged by the respondent were conceded below by the appellant except for:

34 The Tribunal found it unnecessary to resolve the matters referred to in (b). As to the matter in (a), the Tribunal said at 5:

"This Reference was filed in the Registry on 21 September 1999. It alleged that between 22 September 1998 or thereabouts and 29 October 1998 or thereabouts, the practitioner was guilty of unprofessional conduct in that when acting for his client A he received trust monies from his client and failed to deposit the same to his trust account contrary to Section 34 of the Legal Practitioners Act 1893. The particulars allege that the practitioner retained two experts on behalf of his client and asked for an estimate of their fees which was given as $2000 and $3000 respectively. It was further alleged that on 11 August 1998, the practitioner requested payment of $6000 to cover these two estimated disbursements and which was also to include $1000 on account of his own costs and disbursements for which no bill had been rendered. It was further alleged that such sum was paid by the client to the practitioner on 22 September 1998 and all of this was paid by the practitioner into his own general practice account. It was further alleged that on 15 October 1998, the practitioner paid accounts raised by the two experts of $1160 and $2799 respectively from his general practice account. Further, that during October 1998 the two experts performed further services for the client and on 26 October 1998, the practitioner received two further invoices from them totalling $3630 and it was then alleged that the practitioner received a further $8000 from his client to cover the sum of $3630 and the balance on account of his costs for which no bill had been delivered. The sum of $8000 was paid to the general practice account and it was alleged that the full amount should have been paid into the practitioner's trust account.

The practitioner failed to file an Answer in accordance with the Rules or at all."

35 The Tribunal went on to say at 10 with respect to reference R14B of 1999:

"The practitioner gave confused and conflicting answers concerning the $6000 received from Mr A. He stated however that Mr A and the consultants, all agreed that the money be paid to the practitioner's general account and disbursed to the consultants when the accounts came in. As to the $8000 he agreed it was paid and he said that he had rendered a bill for over $8000. He then said that there was an authority in writing to use the general account but that his client took this and all his files back to Thailand."

"Evidence to support the allegation and each of the particulars in this Reference was given by Mr Novell and Mr Jordan. Copies of letters requesting the $6000 from Mr A was [sic] produced. Also produced were the copy accounts for the amounts alleged from the two experts as was evidence that the $6000 was paid into the general account when received and the two experts were paid from that account. Copies of the subsequent accounts delivered by the two experts were produced together with evidence that the $8000 requested was paid to the practitioner's general account.

Eventually, the practitioner conceded the allegations in relation to the $6000 payment but as he had claimed in his sworn Answer at the commencement of the hearing, he claimed that he did have an authority from Mr A to pay this to his general account but that Mr A had returned to Thailand taking all his files and the authority with him. The practitioner called one of the experts to give evidence and the evidence of that expert was that he and the other expert insisted on money for their proposed reports be paid to the practitioner before they would release any reports. That witness did not suggest that it was agreed that the money be paid to the practitioner's general practice account."

37 There are sixteen grounds of appeal. These raise what are said to be errors on the part of the respondent, although they are in fact errors allegedly made by the Tribunal. Grounds 1 to 3 are as follows:

"1. The respondent erred in its proceedings involving the Appellant in that the Respondent fell into error of and fact in determining what was relevant and admissible evidence and accordingly denied the Appellant natural justice in that the members of the Respondent refused to permit the Appellant to lead relevant evidence and/or failed to attach sufficient weight or any weight at all to the Appellant's contentions that the Legal Practitioners Complaints Committee and/or the Legal Practitioner Complaints Officer and/or employees or officers thereof acted in a partial and unfair and prejudicial manner when dealing with dubious and vexatious complaints against the Appellant, which the Appellant was compelled to answer while grievous complaints of unprofessional and fraudulent conduct [sic of] undoubted merit were ignored when reported by the Appellant.

2. Undue pressure was exercised upon the Appellant by the Respondent to change the Appellant's pleas from not guilty to guilty.

3. The Respondent failed to give any weight or any sufficient weight to the contentions of the Appellant that the conduct of the Legal Practitioners Complaints Committee and/or its officers was biased, partial and wrongful and in particular the Respondent failed to attach any weight to the contention that the evidence allegedly obtained by the Legal Practitioners Complaints Committee and/or its officers was obtained in breach of the Appellant's Client's rights to legal professional privilege."

38 These grounds are expressed in broad terms. They do not descend to particulars. Particulars would clearly be required, given that the respondent had put before the Tribunal seven distinct references. On the face of it, these grounds are without merit.

"4. The Respondent erred in failing to attach any or any sufficient weight to the affidavit evidence submitted by the Colonnade Clients and the viva voce evidence of the witness, Sue Haynes, which was directly contrary to the evidence of the witness, Ms G, and the overwhelming probability that Ms G was not being truthful or was mistaken in her evidence."

40 The finding that eight separate payments to the appellant of trust moneys were not paid into the appellant's trust account is not disputed. All of the relevant amounts were paid to the appellant's general office account. The only dispute related to three other payments which the Tribunal found it unnecessary to resolve.

"5. The Respondent further erred in failing to attach any or any sufficient weight to the evidence of Mrs Tailor with regard to the circumstances of the loan and the fact that Mrs Tailor testified as was further confirmed by the evidence before the Respondent of the Trust Account inspector that she was aware that no claim lay against the fidelity fund and that the loan was a personal arrangement which Mrs Tailor wished to keep private."

42 In my opinion, it was not to the point and entirely irrelevant that the appellant's client, Mrs Tailor, wished to keep private a loan made by her to the practitioner. Rule 8 of the Professional Conduct Rules, regulates borrowing by a practitioner from his or her client. The borrowing in this case clearly involved a breach of the Rules. The relevant rule exists for the benefit of both the client and the practitioner. The rationale of the rule is plain. It is to protect the relationship between the solicitor and client, which is a fiduciary relationship.

43 One of the incidents of that relationship is that the solicitor should not put himself in a position where his fiduciary duty to his client and his personal interests may conflict. The transaction to which the appellant was a party was clearly one of that kind.

"6. The Respondent erred in failing to attach any or any sufficient weight to the circumstances under which Mrs Tailor recovered her money from the Real Estate Business Agents Fidelity Fund and the exceptional role that the Appellant played in the recovery thereof."

45 In my opinion, it is entirely irrelevant to the question of guilt or innocence of the subject charge that Mrs Tailor succeeded in recovering the amount of the loan from the Fidelity Fund following the appellant's default in payment. It is likewise irrelevant that the appellant assisted Mrs Tailor in the recovery of her money. The Professional Conduct Rule had clearly been broken.

7. The Respondent failed when dealing with the references relating to the failure to respond to the complaints of the Legal Practitioners Complaints Committee to consider the obviously vexatious and oppressive nature of the complaints that were previously accepted by the Legal Practitioners Complaints Committee and the fact that the Appellant had diligently dealt with the complaints."

47 In my opinion, what happened in relation to previous complaints was irrelevant to the complaints the subject of these proceedings. On the undisputed evidence, there was a significant departure by the appellant from the standards of due diligence required of a practitioner.

"8. In this particular aspect, the Appellant alleges that the Respondent erred badly in law and in fact in failing to pay any weight or any sufficient weight to the merit in the Appellant's explanation that the vexatious reference of Mr F to the Legal Practitioners Complaints Committee involved a clearly dishonest practitioner abusing the system and that the entire history of the matter was such that the Appellant was entitled to adopt an approach that the conduct was 'the final straw that broke the camels [sic camel's] back.' "

49 In my view, the conduct of the other practitioner referred to as "Mr F" was irrelevant and immaterial so far as the conduct of the appellant was concerned.

"9. The Respondent failed to give any or any sufficient weight to the explanation provided by the Appellant and the Appellant's witness, Mr John Dryka, with regard to the references involving the transfer of moneys to the Appellant's General Account as opposed to Trust Account in the Aurthaveekul matter."

51 In my view, it was entirely a matter for the Tribunal to determine on the evidence before it what was the weight and relevance of the evidence of the appellant and Mr Dryka concerning reference R14B of 1999. As was submitted on behalf of the respondent, it is difficult to see how Mr Dryka's evidence could have influenced the Tribunal in reaching the conclusion which it did as stated at pp14 - 15 of the reasons to which I have already referred.

"10. The Respondent failed to give any or any sufficient weight to the manner in which the Legal Practitioners Complaints Officer conducted the case against the Appellant including entrusting the prosecution of the Appellant to Mr J Ley, a practitioner who had a clear conflict of interest and ought not to have been briefed as Mr Ley has appeared against the Appellant in Supreme Court proceedings A.R. Walker v R.L. Wright & Ors CIV 2337 of 1997 and that there was material provided to Mr Ley in his brief relating to matters pertaining to Mr and Mrs Wright and their company."

53 In my opinion, there is no substance in ground 10. The appellant did not seek to identify the material, or the relevance of it, with which Mr Ley was briefed, which created or demonstrated a conflict of interest. No particulars were provided. No objection was taken to Mr Ley's involvement in the proceedings at the relevant time.

" ... the Respondent erred in fact and in law in failing to investigate serious allegations raised by the Appellant concerning the integrity and lack thereof of certain legal practitioners."

55 In my opinion, grounds 11 and 12 have no relevance to the appellant's appeal against his conviction. In any event, to the extent that they are of any potential relevance, they are repetitious of ground 1 and take the matter no further.

56 Grounds 13 to 16 inclusive contend that, for various reasons, the penalty imposed by the respondent was excessive. However, the decision to make and transmit a report to the Supreme Court is not itself the imposition of a penalty or sanction against which there is a right of appeal. Section 29B of the Legal Practitioners Act provides that an appeal lies to the Full Court against any finding or order made by the Disciplinary Tribunal under Part IV of the Act. Section 30 provides that:

"(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."

57 In my opinion, on the face of it, so long as the findings by the Tribunal stand, this is a case in which it was appropriate for the Tribunal to suspend the appellant pending the determination of the appeal: cf Smith v New South Wales Bar Association [1991] HCA 59; (1991) 66 ALJR 219 at 220 per Mason CJ.

58 Having regard to the relevant circumstances, including the total lack of merit in the appeal, and the fact that as at 24 July 2002 the entry of the appeal for hearing was then some 15 months out of time, I am of the opinion that the appellant's appeal should be dismissed for want of prosecution.

59 STEYTLER J: I have had the advantage of reading the judgment of Malcolm CJ. I agree with it. There is nothing I wish to add.

60 TEMPLEMAN J: I have had the advantage of reading in draft the reasons to be delivered by Malcolm CJ. I agree with those reasons. There is nothing I wish to add.

Practitioners Act 1893

Lashansky v Legal Practitioners Complaints Committee [2002] WASCA 326

At a glance

Court

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Judgment (77 paragraphs)

Lashansky v Legal Practitioners Complaints Committee [2002] WASCA 326 (4 December 2002)

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Legislation Cited (1)

Cases Cited (5)