THE LEGAL PRACTITIONERS COMPLAINTS COMMITTEE -v- LASHANSKY [2007] WASC 211 (5 September 2007) - WASC 2007 case summary — Zoe

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THE LEGAL PRACTITIONERS COMPLAINTS COMMITTEE -v- LASHANSKY [2007] WASC 211 (5 September 2007)

[2007] WASC 211

Supreme Court of WA|2007-09-05|Before: Wheeler JA

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Source facts

Court

Supreme Court of WA

Decision date

2007-09-05

Before

Wheeler JA

Catchwords

Source

Original judgment source is linked above.

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Judgment (53 paragraphs)

[1]

The applicant then went on to explain that he had given Mrs Tailor, in exchange for the endorsement of her cheque, 10 cheques each in the sum of $8533 and each otherwise blank. It is somewhat difficult to follow his explanation, but, so far as we can understand it, the idea seems to have been that since Mrs Tailor worked in his office, she would know when his financial situation was improving, and would be able to fill the cheques in from time to time and be repaid in that way. In fact, it seems she was repaid directly.
During the course of explaining that arrangement, the applicant said, apparently in reference to his general account, 'my bank account was overdrawn, as Mr Novell knows and the bank manager was refusing to meet the cheques. He bounced a cheque, as Mr Novell can tell you, for the Australian Taxation Office'.
Pausing there, there are a number of aspects of these questions and answers which are characteristic of the applicant's approach to the references both before the Tribunal and in all proceedings in this Court, which make it peculiarly difficult to understand what defence, if any, he wishes or wished to make.
It is apparent that he assumes that the listener, be it the Tribunal or the Court, is intimately familiar with, or at least will be able to follow, references to many persons and occasions which are not the subject of evidence, which are not in issue in the proceedings, and which have only peripheral, if any, relevance to them. For example, in the passage quoted, there is some reference to a Mr Wright; he does not appear to be one of the 'Colonnade clients', and what he had to do with Mrs Tailor's loan is a mystery to us.
There is a detailed reference to a deed of confidentiality required by a Mr Bellew, although who Mr Bellew might be is not explained. So far as one can discern, although the proposition is not clearly articulated, the relevance of all that may be that Mrs Tailor was not sent for independent legal advice because the applicant formed the view that the deed of confidentiality might have prevented her from revealing to another solicitor how much money she had obtained. The problem with that as a defence, or even as a circumstance of mitigation, is that no deed of confidentiality was ever produced, so that the Tribunal had no opportunity to consider its terms; it would be surprising if such a document had any relevance to independent advice about a loan to a solicitor. The reference to Mr Gentilli and litigation funders and so on, might, if one knew the background, explain why the applicant accepted the money, but would be no answer to the reference.

[4]

It is also desirable to bear in mind, in relation to references 14B and 12 of 2000, that s 58ZB of the Act provided that the remuneration of practitioners was regulated by determinations as to costs made by the Legal Costs Committee, save that, pursuant to s 59, a practitioner could make a written agreement with a client for the manner in which the practitioner was to be paid, including an agreement for lump sum payments. Such an agreement could be reviewed by the Supreme Court, pursuant to s 59.
It is also convenient to mention in relation to this reference an issue raised by the applicant which was common to a number of the references, being the unfortunate state of his records. That issue had, as we understand it, four distinct elements. As is common with the majority of legal practitioners, the applicant, of course, relied upon a computer system to maintain detailed records.
The first element relevant to this issue was that he asserted that he had limited computing skills and understanding, and that the 'inputs' into his computer system were done by others - that is, by members of his staff. He asserted that he was not therefore responsible for what was found on that system.
The second element of this issue also relates to the computerised system. Mr Novell agreed with the applicant, during cross-examination, that the system maintained on the computer was 'in a shocking state'.
So far as paper records were concerned, the third element of this issue related to what the applicant described as the 'torching' of his car. There does not seem to have been any evidence of this before the Tribunal, but it seems to have been generally accepted that there was a car and that there was a fire affecting the car in or about August 1998. As we understand it, the applicant's suggestion has always been that there was a substantial quantity of records contained in that car which, of course, were destroyed. The Tribunal appears to have accepted this. Tribunal members suggested to the applicant a number of times during the course of the hearing that it would be desirable if he directed his efforts towards obtaining, from other former clients, records which might assist the Tribunal in reconstructing the way in which he generally ran his practice, but he did not produce any relevant records. Subsequent to the torching of the applicant's own vehicle, there seems also to have been some damage to a rental car which he hired, but whether there was any issue relating to records contained in that car is not clear.
The fourth element of this issue which was asserted by the applicant was that there was a file, or series of files, containing documents which were, or may have been, of importance to one or more of the references, which went missing at an early stage during Mr Novell's inspection. During cross-examination by the applicant, Mr Novell agreed that there was a morning in January of 1999 on which he had gone to the applicant's office and on which the applicant had been told by an employee, a Ms Lucas, that a file, or something of that nature, was missing. Mr Novell's evidence was that he understood that there had been an extensive search for that material. In relation to this particular reference, we should add that it was put to Mr Novell by the applicant, during cross-examination, that as well as a file going missing, a computer-generated copy of certain material had been deleted from the computer by a person unknown, but Mr Novell was, of course, not in a position to comment on that allegation.
The allegation in this reference was that on two occasions when acting for Mr Aurthaveekul, the applicant received trust moneys and failed to deposit them into his trust account.
The first amount is one of $6000. In a letter dated 11 August 1998, the applicant requested payment of $6000 to cover what, from the terms of the letter, are clearly estimated disbursements in relation to work to be done by two experts, in the sum of $3000 and $2000, together with an additional $1000 which is described as an amount required to cover the applicant's costs 'to date'. On 22 September 1998, a cheque for $6000 was received from Mr Aurthaveekul and was banked into the applicant's general practice account. The only bill of costs which can be located which may relate to this amount is one which is undated, but which is headed: 'Account for Legal Services June-August 1998.' The body of the account simply reads '[o]n agreed fee of $6,000.00', so that it is not a bill of the type contemplated by s 34A(b) of the Act. The evidence of Mr Novell was that when he went to the applicant's computer system, the only record of any date in relation to that account which he could find was a record of the file being opened on the computer on 7 March 1999, the day before his inspection. It was alleged that on 15 October 1998, the applicant paid accounts raised by the two experts in question of $1160 and $2799 respectively from the general practice account. Those amounts do not appear to be featured on any bill of costs.
As to the second amount, it was alleged that on 29 October 1998, the applicant received a further $8000, which was banked into his general account. Again, the only bill which may be relevant to this payment is one which is undated, but headed: 'Account for Legal Services 1 September-25 October 1998.' It deals with solicitors' and secretarial costs and photocopying, and is expressed to be in the sum of $8000. Again, the only date which can be found is the date of the computer record of 7 March 1999.
What the applicant said about this reference in his preliminary oral answers to the Tribunal was, as the Tribunal noted, 'confused and conflicting'. In relation to the $6000, he agreed that he requested it, but was not sure of the date, and he agreed that it was paid to him. He asserted that he had done over $10,000 worth of work at the time and that the $1000 requested was a 'token fee'. It is not clear what relevance the applicant thought those assertions had.
He said that he had paid the money into the general account because that was 'the arrangement'. There were conflicting accounts of the arrangement, but the thrust of it seemed to be that the consultants had required that the amount go into the general account, in order that they could be certain that they would be paid, and that Mr Aurthaveekul, who was present at a meeting at which this was discussed (although he had limited English) 'had no objection'. The applicant said that he was not at liberty to tell the Tribunal why such an arrangement had been made, because that matter was confidential, but indicated that it was something to do with a 'bad experience' that the consultants had had in relation to another matter.
The applicant's answers at pages 24 and 25 of the transcript display complete confusion on his part as to what is required by s 34A of the Act. He seemed to be unable to distinguish between a bill of costs, and a request for money to be paid in advance on account of costs and disbursements. The relevant questions and answers are as follows:

[6]

As to the $8000, the applicant said it was 'already owed' and that there had been a bill rendered for more than $8000. As to both amounts, the applicant said that Mr Aurthaveekul never paid in advance, and that he might have paid the $6000 in advance, but that the applicant did not think so. He said there had been accounts rendered for $6000, $8000 and $12,000. He said that there was a written authority from Mr Aurthaveekul to pay the money into his general account, but that Mr Aurthaveekul took that with him when he returned to Thailand. However, he appeared to suggest that the written authority was signed only at the completion of the matter in which he was acting.
In relation to this reference, and in relation to other references, particularly R12 of 2000, the applicant raised an issue of legal professional privilege. When Mr Novell gave evidence that he inspected client files of Mr Aurthaveekul in order to attempt to ascertain whether there had been any bills of costs rendered in respect of the $6000 or the $8000, the applicant objected that those documents were privileged. There was some legal argument in relation to that issue, and the Tribunal ruled that material which Mr Novell had obtained as a result of his inspection of the files of the applicant was admissible.
On 31 October, the applicant conceded to the Tribunal that in respect of this reference, there was $6000 that 'shouldn't have been dealt with in the way that I dealt with it'. On 1 November, he conceded that in relation to the first $6000, there was 'no defence'. He further said that in relation to that reference, there was an account, or series of accounts, given to Mr Aurthaveekul, but he conceded that there was no accounting 'in terms of section 34'.
He called one of the expert consultants to give evidence which the Tribunal understood to be directed to matters of mitigation. That witness gave evidence that he would not have accepted any arrangement which would have required him to have to wait for payment to be authorised.
As to the $8000, the Tribunal did not accept the applicant's assertions that he was instructed to pay it, or any other sum, into the general practice account. It found that the payment of the sums into the general account was in breach of the Act, a finding which appears plainly to have been open.

[7]

This reference alleged that between 14 August 1997 and 25 November 1998, the applicant failed to pay into his trust account certain moneys set out in an annexed schedule, and which represented wholly future costs and disbursements, or alternatively, partly future costs and disbursements and partly costs and disbursements already accrued, but in respect of which no bill of costs had been raised. In the form in which it was finally placed before the Tribunal, it was alleged that upon requests made of Ms Gilchrist by the applicant, she from time to time paid to him cheques (12 in total) in an amount of $22,450 (submissions in reply of the Legal Practitioners Complaints Committee), for which no bill of costs had been raised. It was further alleged that those were paid into the practice bank account or cashed by him, rather than paid into the trust account.
The reference arose out of what was called either the 'Colonnade' or the 'shopping centre' action. Ms Gilchrist was one of a number of clients, each of whom was apparently the lessee of a shop in a shopping centre which went under the name of 'The Colonnade'. They all had a complaint of a similar nature against the former owners and managing agents of that shopping centre. It was the subject of an action in the Federal Court in which those clients instructed the applicant. It was in due course settled.
It is even less clear in respect of this reference than it is in respect of the others, what the applicant's answer was. In the oral answers he gave at the outset of the Tribunal hearing, the applicant said, in effect, that there had been many payments in that action. He could not recall the particular ones about which he was first asked. He certainly had requested money, not only for his own fees, but for the forensic accountant he engaged. He could not recall whether at the relevant time he had sent Ms Gilchrist any bill of costs for his fees. He said that the car which had been destroyed by fire had contained 'the Colonnade files'. A little later, he said that '[m]ost certainly' she had accounts rendered. He said that there were five statements by five other clients in that action to the effect that 'every cent has been accounted for' and that they had been given accounts. He said the money to pay counsel was paid directly to Jackson McDonald. He said that the clients had had 'accountings' of the money and that every couple of weeks there was a meeting at which all of the clients were present.
The applicant did agree that most of the cheques from Ms Gilchrist were placed into the general account, although he had a recollection of one being cashed to meet some pressing expense connected with the litigation. It should be noted that it is impossible to tell from the answers given at this point by the applicant whether, in saying that money was 'accounted for', he meant that money was only paid to him after he had rendered a proper bill of costs for it, or whether he was simply indicating that he had told the clients what their money would be spent on, or had been spent on, at the various meetings to which he referred.
Ms Gilchrist's evidence was that she had received a number of accounts which she identified. She paid an amount in the order of a little over $67,000 by way of costs. The Tribunal mentioned from time to time the calculations it made in respect of various amounts of costs for which there both were, and apparently were not, bills rendered. It was clear that not all of the payments made by Ms Gilchrist were, on her evidence, the subject of bills of costs.
It appeared that Ms Gilchrist had at times worked in the applicant's office in order to keep costs down. A letter from the applicant to all the Colonnade clients dated 9 November 1998 refers to his gratitude to Ms Gilchrist both for her assistance in keeping secretarial hours down, and for the loan of some bookshelves.
The applicant called a witness who was one of the clients in the Colonnade action. She said she had been given accounts. She said the payments that she made to the applicant were in response to accounts, but that she did not have the accounts with her and that she would object to producing them on the basis that at a meeting attended by the applicant and the Colonnade clients other than Ms Gilchrist in April 2000, it was agreed that those accounts were confidential. That objection was said somehow to be linked to the settlement of the action and the deed of confidentiality signed, but there was no evidence to suggest why accounts rendered by the applicant to his own clients would have been dealt with as confidential in that deed. It appeared that the witness had not been present at the meeting where that decision had been made, but had been informed about it by her husband, so that she was not really able to assist.
In the applicant's cross-examination of Ms Gilchrist, his focus was upon whether he had had accounts to pay from other people (such as counsel or the forensic accountant), whether he had done the work, and whether clients had meetings at which they were informed about the progress of the action. In response to a question from the Chairman during the course of his cross-examination, the applicant indicated the following, at page 182 of the transcript:

[9]

It seems to us that the applicant was saying that when he asked Ms Gilchrist for money, he only did so when he had already disbursed his own funds out of the general account in relation to the Colonnade litigation and that he was able to put payments from Ms Gilchrist into his general account, because that was only reimbursement of what he had already paid. It appears that he took a similar view in relation to work done; that is, that there was no difficulty with his asking Ms Gilchrist to pay moneys provided that he had already somewhere recorded that he had done work at least equivalent in value to the money sought.
The problem with all of this, as the Chairman and other members of the Tribunal repeatedly sought to explain to him, was that it was not being suggested by the reference that he had stolen the money, but rather that he had failed to pay it to his trust account, or render proper bills of costs. After a short adjournment on 24 October, the applicant said that after discussion with his office administrator, it appeared to him that he 'might not have an answer' to the proposition that he had not properly accounted for the moneys paid to him by Ms Gilchrist, and that, in particular, there had not been appropriate bills of costs raised in relation to them.
There was issue taken by the applicant with Ms Gilchrist's evidence that she had on more than one occasion asked him to provide an account showing where the moneys had gone. Although it occupied some time, it was not strictly in issue on the reference. On a number of occasions, the Tribunal suggested to the applicant that he should, if he had provided accounts to other clients in relation to all of the sums paid in respect of the Colonnade matters, ask those clients for copies of the accounts, since it appeared that he sent similar, or identical, accounts and letters to each client. He repeatedly indicated his willingness to do so, but did not.
On 1 November 2000, the applicant conceded that Ms Gilchrist 'wasn't given an accounting for the moneys'. He also said that there seemed to be a problem with the accounts in the sense that he had searched his 'post out' books to see if accounts had been sent, but could not find entries for them. In the end, he made that concession only in relation to about $20,000 worth of costs, there being three payments in August and September of 1998 which he said had been paid into his general account properly after accounts had been rendered.
The Tribunal found this matter proved.

[10]

This reference alleges that between 29 January 2000 and 19 June 2000, the applicant was guilty of unprofessional conduct in that he failed to give to the Complaints Committee within the time limited in that regard, or within a reasonable time, a full and frank response to certain inquiries made of him by the Committee. The inquiries related to Ms Gilchrist. The Law Society's Professional Conduct Rules, r 1.4, state that it is the duty of every practitioner to respond within time and in the manner required by the Legal Practice Board to any requirement of the Board for comments or information on a complaint. That body had by the relevant time been replaced by the Complaints Committee, so the rule should be read as applying to that body.
By letter dated 27 January 2000, Mr Jordan advised the applicant that the Complaints Committee had received an enquiry from Ms Gilchrist. The letter said that the matter was 'as an enquiry only' at that stage and not as a formal complaint; it foreshadowed, however, that there were certain matters which appeared to be 'highly unusual', and that it was not unlikely that there would be further investigation as a complaint, or pursuant to s 25(1)(c) of the Act. A series of detailed allegations was made and a written response was sought within 14 days. A further letter of 1 February 2000 from Mr Jordan to the applicant referred to a telephone conversation of 31 January 2000 and confirmed that the applicant would provide certain materials to Mr Jordan. A letter of 10 February 2000 referred to the earlier letters and noted that there had been no response, other than the telephone conversation. It advised that the matters the subject of the first letter were now the subject of a 'formal enquiry without complaint', pursuant to s 25(1)(c), and further advised that unless a full and frank response was received by 5 pm on 14 February, there would be referred to the Complaints Committee the question of whether an application should not be made to the Supreme Court for an order suspending the applicant from practice pending the conclusion of the inquiry.
There was apparently then some discussion between the applicant and Mr Jordan. On 15 February, the applicant provided a variety of computer-generated documents and a covering facsimile. By letter dated 29 February 2000, Mr Jordan sought elaboration of, and clarification of, the material contained in those documents. Mr Jordan then wrote on 19 April 2000, seeking a full and frank response to the letter of 29 February. There was apparently a discussion on 5 May and some documents were provided to Mr Jordan, but in Mr Jordan's view (and in the view taken in due course by the Tribunal) nothing in that material addressed the matters raised in the earlier letters.
In his oral answers before the Tribunal, the applicant said in relation to the letter of 27 January 2000 that he did not recall seeing it and that he had moved from one office suite to another, apparently within the same building, so there was a possibility of misdelivery. He did, however, see a letter of 28 January, which made a small correction to the matters contained in the first letter. He did receive the letter of 1 February. He recalled 'dozens' of telephone conversations with Mr Jordan. He also recalled 'dozens' of letters. The applicant said that although there had only been one written response, in the form of the covering facsimile and the provision of a variety of documents, there had been 'dozens' of oral responses to the inquiries made of him. Further, a Mr Novatscov, who was apparently one of the clients providing a disproportionate amount of funding towards the Colonnade action, refused to provide information relating to his accounts to the Complaints Committee. It is not clear why this meant that no written response could be provided.
The applicant asserted to the Tribunal, apparently in connection with this reference, that he had made complaints about a number of people which had not been properly investigated, and that others had made complaints about him which had no substance. He agreed with a suggestion from the Chairman that he was suggesting that there was a conspiracy against him. The applicant also cross-examined Mr Jordan for some time about why certain complaints against him had been followed up and what had been done in relation to other complaints made by him. Much of that cross-examination is difficult to follow, because the details of the various complaints are not in evidence, and are not explained by the applicant. In relation to this and a number of 'non-response' references, the applicant said, during the course of cross-examining Mr Jordan, that at some stage he went to the Complaints Committee's office and explained to Mr Jordan that he was 'outraged' that a particular complaint had come in against him, and informed Mr Jordan that that was 'the final straw that broke the camel's back'.
On 1 November 2000, the applicant conceded that he had not provided a full and frank response to the inquiries referred to. He added: There were attempts, as Mr Jordan's evidence, to accommodate him, but it's clearly that it has not been good enough.'
The Tribunal found that there was a failure to give a full and frank response to those inquiries. The inquiries were, the Tribunal found, related in the main to financial aspects of the Colonnade litigation and were queries as to why the applicant had failed to pay moneys to his trust account, or to give accounts required by law. The Tribunal found, as in our view it was open to it to find, that the conduct disclosed either a deliberate attempt to conceal the true state of affairs regarding the way the applicant dealt with moneys received from various tenants, or a complete lack of understanding of the duties of a solicitor in relation to the keeping of trust moneys.

[13]

This is another allegation that between stated dates, the applicant failed within the time requested, or a reasonable time, to give a full and frank response to certain inquiries made by the Complaints Committee. Oddly, the failure was in relation to a complaint made by a client of the applicant, supported by the applicant, concerning another person.
The applicant and his client had alleged that the other person had misappropriated $100,000 from the applicant's client. By letter to the applicant dated 26 April 2000, the Complaints Officer sought a response to a question as to whether the applicant had issued a writ in connection with that matter, which he had said he was going to issue, and as to how far a police inquiry into the matter had progressed. That letter also advised the applicant that the other person had lodged a complaint against the applicant and inquired whether those matters were to be the subject of litigation. The reason for that letter was, as it was explained in evidence, that the Committee would generally refrain from investigating a matter which was the subject of uncompleted litigation or of a police inquiry, until those other matters had been finalised. There were follow-up letters seeking the same information. No response was ever received.
The applicant's response to this reference before the Tribunal was to agree that he had received some letters. However, it was his view, and his client's view, that nothing would be done about his complaint and, that he was being singled out by a conspiracy against him. The 'camel's back' was mentioned by the applicant. In addition, in his cross-examination of Mr Jordan, the applicant asserted that his complaint in relation to this person was not missing money, but that the person was 'going around uncertificated and practising as a lawyer'. Mr Jordan's response was that for him that would have 'paled into insignificance' when he was also told that a practitioner, certificated or not, had stolen $100,000 from his client. It may be then, that the applicant thought the gravamen of his complaint about this person was that the person was acting as a legal practitioner while uncertificated, while Mr Jordan thought that the gravamen of the complaint was the theft of the money. Even if that is so, it does not justify or explain a failure to respond in relation to an inquiry about a matter initially raised by the applicant himself.
On 1 November, the applicant conceded that he failed to give a full and frank response to those inquiries. The Tribunal, of course, found that matter proved.

[49]

EM HEENAN J: Mr Lashansky, I wouldn't want you to misunderstand the gravity of what I am putting to you at the minute. If you want to make an impression on me in this court, then the things that you should address are your present circumstances, what you have been doing in the last seven years, what your hopes and aspirations are and why you want to continue to be on the roll as a practitioner. If you keep telling me about circumstances which led to the findings made by the Legal Practice Board of course I will listen, but it will make very little impression.

LASHANSKY, MR: Sir, the only thing that actually says it all is three documents that say it all about why I should be on this roll and shouldn't - will you hand this up, please.

EM HEENAN J: I have seen that document in one of the papers. What you are saying is that you have a reputation for helping underprivileged and disadvantaged people in the past and that you take pride in the work that you have done. Is that right?

LASHANSKY, MR: Sir, I don't only take pride in it. I would say that in all honesty probably the seven years that have passed have been a very bitter experience for me, the most bitter I have seen. Client after client that I could have won matches for I have watched just actually fall in a heap. The chairman of the tribunal seemed to believe that people will just come around and they will help other people and that there is a supposed notion of mateship that rules in Australia. Well, believe you me, if you are down you are down in this place.

Sir, one of the things that the Legal Practice Board couldn't return was a file belonging to a Mr Rodney Hedlam. That is in Mr Goetze's correspondence in 1768 which I will take you to, sir. Mr Rodney Hedlam lives in the Supreme Court garden. He didn't have a lawyer. He came to me. He is an Aboriginal gentleman. He had nothing in life. He had gone, he had taken his money in all good faith that he had earned as a day labourer in Mandurah and he had gone to some rather sharp motor vehicle sales people in Maddington that had sold him a vehicle at twice its cost. He came to me. He had nothing. I acted for him. Eventually I got the sale set aside on the basis they would reaccept the rubbish that they had given him and give him something that was more or less attractive. Those are the types of people I help, sir. I go out of my way to help people. Mr Davies is well aware - - -

EM HEENAN J: Just a minute, Mr Lashansky. Your proposition is that you have dedicated a lot of your life and time to helping the underprivileged and that they are in dire need of assistance and when it comes to legal assistance it is very hard for them to come by it. All that is laudable and I can understand why you would take pride in it, but what are you saying about the findings which have been made and what should be done with your future?

LASHANSKY, MR: Sir, I can't resile from the fact. I turned around and I said to Mrs Howell - not to Mrs Howell, to Mr Jordan, 'The last straw, it's broken the camel's back.' I subpoenaed Mrs Howell and Mr Jordan [of the Legal Practitioners Complaints Committee] to bring those complaint files. Until you see what is on those complaint files that caused me to adopt this, sir, you are taking a very bad approach. I beg you to read those complaint files.

I went to Mrs Howell and had sent out - and in her own letter to me on 30 April 2002 - I went to Mrs Howell several times in 1996 and I said, 'Mrs Howell, there is something rotten in here. Please help me. There's an issue that we've got now which the Full Court of this court has decided unanimously Mr Seng Fai Chan had a conflict of interest. Two elderly unrepresented people came along, went to Mr Chan and were lent 70 or 80 thousand dollars, is my memory, from the solicitor, the family trust of a solicitor working in Mr Chan's office, T.V. Sukumar.

These are facts, sir. These facts were found by Master Bredmeyer, Master Bredmeyer, a magnificent judicial officer the like of which you will never see again and who it was an absolute privilege pleasure to have always appear in front of, turned around and he said, 'You get summary judgment, Mrs Chan.' Mrs Chan then went to Rob Viner, Rob Viner signs this saying, 'Bredmeyer has gone off the rails,' and she then went and she managed to get Mrs Waldron to agree to $1000 a month. That never happened.

I take the judgment - and the letter is here - and I go to Mrs Howell and I say to Mrs Howell, 'Don't do anything, Mrs Howell, because what Mr Chan has done in this matter is criminal. His client, Frances Mary Chan, has gone and defrauded all of these people. Please - but I'm asking you, Mrs Howell, 86 per cent interest to an elderly 84-year-old and a 74-year-old from the family trust of a solicitor as found by Master Bredmeyer in a judgment,' and Master Bredmeyer didn't make many mistakes. He was a great judicial officer, and if I ever come out of this - and all I ever got was Master Bredmeyer's letter to me in appreciation because when he retired I sent him a bottle of Chivas Regal for his - Wallwork J, one of the finest men that you will ever appear in front of. I will appear in my home courts in South Africa again and one of these days you will see - - -

[50]

EM HEENAN J: Mr Lashansky, you must accept that our duty is to deal with this application on the basis of the facts as they have been found in the report. I am going to concentrate on what's in the report and what is in the findings of the board. I can't draw any conclusions which are inconsistent with or which qualify the findings of the board. I want you to tell me what you think I should conclude about the orders to be made against you in the face of those findings.

LASHANSKY, MR: Well, sir, the first and most important thing that you have to look at, sir, with the greatest respect - if you have a look at Ziems and that's the common law of this country - is that you have to look at the whole circumstances in which - - -

EM HEENAN J: Yes, I know that very well.

LASHANSKY, MR: So let's concede Ziems. So let's start off now with the Aurthaveekul reference, where the $8000 was not pursued. So there's only one amount of 6000 that's in issue. I could take you through the transcript, sir, but - - -

EM HEENAN J: No, the transcript is no more use to us than any of these other papers. It's the findings that are critical.

LASHANSKY, MR: Okay. I beg leave to hand that up, sir. That's the affidavit of 14 July in matter 1768 of 2004.

WHEELER JA: All right. Just for the transcript, you have given us a copy of an affidavit you have sworn in CIV 1768 of 2004, and the page you have opened to is annexure RJL23, which is a photocopy of a page of the Sunday Times, which appears to have on it an article dealing with the use of a first home buyer's grant to purchase a very expensive home. All right. What did you want to tell us?

LASHANSKY, MR: Ma'am, could you have a look just over the page. It's either the preceding page - there's a gold medallion.

WHEELER JA: This is the photocopy of - yes, there's a gold medallion, which I understand to be - and I may be wrong, but which I understand to be a photocopy of a medallion which you have, in evidence on other occasions, indicated was given to you by Mr Aurthaveekul. Yes, all right. Now, what submission did you want to make?

LASHANSKY, MR: The submission is that the property of Mr Aurthaveekul was sold for $6.8 million, ma'am. Mr Aurthaveekul's - the reference against me is 6000. The 6000 revolves into 3000 to Mr Peacock, 2000 to Mr Dryka [experts engaged for the Aurthaveekul matters] and $1000 to myself. Mr Novell's [the trust account inspector] letter to me, which is one of the exhibits over there in connection - it's the letter of the 26th of - I think it's 26 Feb.

WHEELER JA: Yes, carry on.

LASHANSKY, MR: Mr Novell said after a substantial amount of work had been done on the Aurthaveekul file.

WHEELER JA: So is this submission directed to the proposition that the moneys of Mr Aurthaveekul, with which the tribunal found you had not dealt appropriately, constituted what would be for a person of his means a very small sum. Is that where this is going?

LASHANSKY, MR: Ma'am, it's not - the $8000 was not found against me. It was not pursued. So there's only 6000 of which three of it went to - or Dryka and Peacock. Effectively there was a $1000 amount there that Robert Lashansky got that he ought not to have got. Now, one looks at the value of that home at 6.8 million. There's no complaint here from Mr Aurthaveekul that 'You've taken my money and you've dudded me.' Just - - -

EM HEENAN J: No, Mr Lashansky. The point is that a solicitor acting in those circumstances, paid money by a client, should pay it into his trust account. It doesn't matter whether it's $10 or a thousand or a million. It wasn't your money to pay into your account. It should have been paid into your trust account, and the fact that it wasn't suggests that you're not aware of or that you don't respect the obligations on a practitioner. That's the point.

LASHANSKY, MR: Sir, I come back to the answer to that, and it's dealt with sometimes in the transcript. The procedure that was adopted in Mr Aurthaveekul's matter was put to Mr Angelo Pisano at Jackson McDonald. He then contacted two of his senior partners, Mr Gentilli and Mr Fyfe, and we believe that the procedure was lawful. So if it subsequently turned out to be unlawful, as your Honour is now suggesting and which the tribunal has found against me, well, unfortunately, I was acting on improper legal advice. I should have not done it, sir. In the circumstances the amount of money that's involved in it is absolutely minuscule compared to what was in issue at the house. An amount of work had been done.

[53]

LASHANSKY, MR: Sir, somebody has come along and they have removed the sovereign. I'm told that the sovereign has been removed but, sir, when you go and stand in the High Court and you argue and you listen in the High Court they still say, 'God save the Queen,' and the issue is the crown prosecutes, and on 6 November 1999, sir, the people of Australia unanimously said, 'We want our sovereign. Please keep our sovereign.'

Somebody has come along here through the back door in a Legal Practice Amendment Act and started changing judicial oath. I don't think that it's a matter that Mr Davies trivialises. You took an oath, sir, Mr McGinty has gone and changed that oath. You take an oath to the State of Western Australia that doesn't exist.

WHEELER JA: Mr Lashansky, I am having difficulty seeing what this has to do with the question of what we should do in relation to the report.

LASHANSKY, MR: Ma'am, I have to tell you, and that's the reason why one should never make insincere apologies. The sovereign, her Majesty, was asked to apologise in February 2005 for the bombing of Dresden and her Majesty turned around and she said, 'No.' She stood by the men of bomber command that had gone there and 58,000 of them had lost their lives, and she wouldn't apologise. She wouldn't make an apology, but the Dresden cathedral that was destroyed - her Majesty sent her own money to help in the reconstruction of it.

One turns around - I'll help. I'll help in the reconstruction like her Majesty did but, sir, I want justice and I won't apologise. I shouldn't do this and I really - I know exactly what I'm doing is - may be evidence of lack of contrition et cetera, but at the end of the day I'm upset that her Majesty has been removed. I'm upset that dieu et mon droit is not - prosecutions should still go ahead in the name of the crown, those that have gone ahead since Governor Macquarie arrived here. That's the way it is, sir, and if you want to go ahead and you want to make constitutional changes, by all means, but first go and - - -

EM HEENAN J: I think you mean Governor Phillip.

LASHANSKY, MR: I mean Governor Phillip, sir. I apologise, sir. I'm getting carried away, but that's the issue, sir. I see these things that happen and it upsets me, it really does, and I can't turn around and say to you it doesn't upset me, because it does, and if I have to say to you the biggest change that Mr McGinty brought in was he is now allowing people what I complained about Mr Novell - he is allowing people to go ahead during the course of an investigation and he has made it quite clear that the legal professional privilege is now capable of being abrogated. That's wrong, sir. Every time a client comes in to me now if I have to practise - - -

EM HEENAN J: Mr Lashansky, what has this got to do with the decision that we have to make in relation to these seven findings against you?

LASHANSKY, MR: Sir, at the end of the day you should always do like the great Henry Wallwork used to do - you temper your justice with mercy and you temper your mercy with justice, and at the end of the day Wallwork J was a champion at that and he did it. At the end of the day you can have a look, sir. I didn't get any financial gain - 394 and - there's no misappropriation.

EM HEENAN J: Is there any point in me asking you again, and for the final time, what you suggest we should do with you?

LASHANSKY, MR: Well, you should give me exactly the punishment Mr de Barran Cullen got, $8000 fine for I don't know how many thousands on his second offence, sir, maybe a thousand-dollar fine on the matters, sir. I believe that no more than a reprimand is warranted - a thousand dollars in the wrong account on a $7-million home. Mrs Tailor's loan - unfortunately IMF didn't exist and at that time I still believed the old law, but there's another problem with Mrs Tailor.

EM HEENAN J: Anyway, you have answered the question, you say a fine or a reprimand.

LASHANSKY, MR: Sir, at the end of the day, even a fine is - bearing in mind that I have lost seven years income, plus a couple of hundred thousand dollars which I'm still trying to recover in fees when my files got suspended, but there's another issue, sir. Mrs Tailor, was she actually a client of mine at the time this loan was made? Mr Wayne Martin QC was approached by the Ministry of Fair Trading and Mr Wayne Martin set up a regime because the two criminal trials still had to take place and the claim of Mrs Tailor was subrogated to the Ministry of Fair Trading.

So at the end of the day there's a dispute as to whether Mrs Tailor was actually a client but, more importantly, sir, under normal circumstances I probably would have sent Mrs Tailor immediately, in fact, I actually believed earlier in the piece, when I actually got the good news, that I told Mrs Tailor to take advice and that she repeated to Mrs Fussell and go and take it, but then this Wayne Martin confidentiality regime took place and Mrs Tailor was paid back.

She bought the house that she was living in in Maddington and sold it for double and she wouldn't have had nothing. When I found her she was sitting in one room in her mother's premises. Nobody wants to do anything, sir. I would say to you that I do a bit of community work et cetera but, sir, really and truly, I don't think I have got any hunger left in me for the law.

EM HEENAN J: The finding is that Mrs Tailor was a client of yours.

LASHANSKY, MR: Yes; but at the end of the day, should that have been admitted? Mrs Tailor's father went to the Ministry of Fair Trading - - -

EM HEENAN J: That's the finding.

LASHANSKY, MR: Yes, I know, sir, but the point of the matter is that those hearings didn't proceed the way they ought to have proceeded. There was a whole lot of material that I had been desperate to have - I would have loved to have put to Ms Gilchrist - and Ms Gilchrist's own letter of complaint, why wasn't that sent to me, sir? Why did I have to wait until Malcolm CJ gave an undertaking two and a half years later? Why wasn't it given to me when Ms Gilchrist complained?

The Legal Practice annual report always says that these complaints are given to practitioners unless there's a good reason. Why wasn't that complaint given to me? Maybe Mrs Howell could tell you. And the reason it wasn't given to me, sir, is a despicable reason. There was $241,000 in my trust account; had I known the identity of Ms Gilchrist - and this is actually sitting in the document - I would never have released Ms Gilchrist's money. I would have gone immediately, taxed up her account and then Ms Gilchrist wouldn't have got the money. That's plain and simple, if I had known that she had complained. Mrs Tailor's letter, sir, I have to come back to that.

Legislation Cited (3)

Practitioners Act 1893

Practice Board Rules 1949

Practice Act 2003

Cases Cited (17)

THE LEGAL PRACTITIONERS COMPLAINTS COMMITTEE -v- LASHANSKY [2007] WASC 211 (5 September 2007)

6 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:

The foundation upon which the practitioner's request was based is one of apprehended bias. The test, in such a case, is that of 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 decide: McCreed v The Queen [2003] WASCA 275; (2003) 27 WAR 554 at 557 [8]; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 492; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 and Forge v Australian Securities and Investments Commission [2006] HCA 44 at [67]. The principle gives effect to the requirement that justice should be done and be seen to be done and that a court is an independent and impartial body. Justice can only be done if there is no bias and it can only be seen to be done if there is no appearance of bias: McCreed at 557 [7].
In Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 294, the High Court said:

More recently, in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 348, Gleeson CJ, McHugh, Gummow and Hayne JJ said:

In our opinion there is no reasonable basis upon which a fair-minded lay observer might apprehend that Pullin JA might not bring a fair and impartial mind to this case. The suggestion that there is a reasonable apprehension of bias is based solely upon the proposition that Pullin JA had previously served as Chairman of the Law Society's Complaints Committee prior to his appointment to the bench in 2001. The evidence before the Court (in the form of the affidavit of Ms Diane Howell sworn on 29 March 2006) suggests that the only interaction Pullin JA may have had with the practitioner during his time as Chairman of the Complaints Committee was in chairing a meeting at which it was resolved that information regarding the practitioner be published to the Law Society of the Northern Territory. There is no suggestion from the practitioner that Pullin JA had any greater involvement than this although, as will be apparent from what we have earlier said, Pullin JA also heard, and refused, an application by the practitioner to stay the order that there be publication of the reasons of the Tribunal on 26 September 2003. However, the practitioner contends that, even if this involvement is insufficient to justify his claim of apprehended bias, then the fact of Pullin JA's past association with members of the Complaints Committee and the Tribunal may affect his ability to decide the case on the merits, more especially in circumstances in which the practitioner has made a number of complaints concerning the behaviour of some of those persons.
In our opinion, Pullin JA's very limited involvement with matters concerning the practitioner (he has no independent recollection of them) are insufficient to give rise to any reasonable apprehension of bias. As to the suggestion that his association with members of the Complaints Committee and Tribunal is likely to affect his ability to decide the case on its merits, it seems to us that, in circumstances in which his association with these persons was limited to an official capacity and is now some five years distant, this, too, is incapable of giving rise to any reasonable apprehension of bias, whether viewed in isolation or together with the other matters relied upon. It has been said that the administration of justice is a practical business which relies to a very great extent on judges putting aside whatever personal professional associations they may have had and doing justice as they are sworn to do: see Western Australia v Watson [1990] WAR 248 at 264. It should also be remembered that the fair-minded observer is taken to be reasonable and that the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial': , at 527, per McHugh JA, quoted with approval by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in . There is no reason to think that a fair-minded observer would doubt that Pullin JA would be able to do so in this case.

11 Finally, the respondent complains of two things which were said by Mr Davies during the course of the proceedings the subject of the reasons in Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217. One of the matters of which the respondent complains is that which is described at [252] of the reasons for decision in that case. The statement, to the extent that it was relevant to those proceedings, was dealt with at [252] of those reasons, and we are unable to see how it could be relevant to these proceedings. The second was the concession, referred to in [120] of the reasons in that case, to the effect that the respondent's prior appeal had been 'reinstated'. For some reason, the fact that Mr Davies made a concession, which was favourable to the respondent, but which the Court did not accept is considered by the respondent to indicate that Mr Davies will not act fairly in this case. We are simply unable to see how any reasonable person could reach such a view.

(2003) 27 WAR 554

(2000) 201 CLR 488

(1989) 167 CLR 568

(1983) 151 CLR 288

(1980) 55 ALJR 12

(2000) 205 CLR 337

(1957) 97 CLR 279

(1979) 40 FLR 1

(1995) 15 WAR 12

(1968) 117 CLR 177

(1960) 104 CLR 186