Attorney General for Western Australia v Lashansky [No 2]
[2015] WASC 417 (S)
•18 DECEMBER 2015
ATTORNEY GENERAL FOR WESTERN AUSTRALIA -v- LASHANSKY [No 2] [2015] WASC 417 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 417 (S) | |
| Case No: | CIV:2506/2013 | ON THE PAPERS | |
| Coram: | ALLANSON J | 18/12/15 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | The respondent pay the applicant's costs of the application filed 4 October 2013, to be taxed | ||
| B | |||
| PDF Version |
| Parties: | ATTORNEY GENERAL FOR WESTERN AUSTRALIA ROBERT JAMES LASHANSKY |
Catchwords: | Vexatious Proceedings Restriction Act 2002 (WA) Costs Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 59 r 4, O 59 r 5, O 66 r 1 Supreme Court Rules 1935 (WA), s 37(1) Vexatious Proceedings Restriction Act 2002 (WA), s 4 |
Case References: | Attorney General for Western Australia v MTI [2014] WASC 303 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Michael v Western Australian Attorney General [2006] WASCA 123 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231 (S) The Principal Registrar of the Supreme Court v Chin [2012] WASC 7 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
ROBERT JAMES LASHANSKY
Respondent
Catchwords:
Vexatious Proceedings Restriction Act 2002 (WA) - Costs - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 59 r 4, O 59 r 5, O 66 r 1
Supreme Court Rules 1935 (WA), s 37(1)
Vexatious Proceedings Restriction Act 2002 (WA), s 4
Result:
The respondent pay the applicant's costs of the application filed 4 October 2013, to be taxed
Category: B
Representation:
Counsel:
Applicant : No appearance
Respondent : No appearance
Solicitors:
Applicant : State Solicitor for Western Australia
Respondent : In person
Case(s) referred to in judgment(s):
Attorney General for Western Australia v MTI [2014] WASC 303
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Michael v Western Australian Attorney General [2006] WASCA 123
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231 (S)
The Principal Registrar of the Supreme Court v Chin [2012] WASC 7
1 ALLANSON J: On 5 November 2015, I delivered reasons for judgment on the application by the Attorney General for Western Australia for orders under the Vexatious Proceedings Restriction Act 2002 (WA). On 19 November 2015, I made an order pursuant to s 4 of that Act, and further ordered that the parties have until 10 December 2015 to file and serve any written submissions on the costs of the application, with the question of costs to be determined on the papers.
2 The applicant filed submissions on 9 December 2015, seeking an order that Mr Lashansky pay the costs of the application. Mr Lashansky has not filed any submissions. On 10 December, the last day for the filing of submissions, Mr Dryka (an associate of Mr Lashansky) sent an email to my associate, in these terms:
I refer to the above matter where Mr. Lashansky is obliged to file submissions by today.
Please be advised that Mr. Lashansky is in the process of applying for a stay, alternatively an extension of time in which to file submissions.
The reasons for this are well known.
Mr. Lashansky further requests that the State Solicitor make Discovery of the Time Sheets for all of the Applicant's solicitors involved in this matter in order to reply to the material in the outline of submissions filed yesterday on behalf of the State Solicitor.
With respect, Justice Pullin in his referral stated that the matter was to be dealt with as a matter of urgency in May 2002.
The application in this smatter was filed nearly 17 months later!
The prime affidavits that Mr Lashansky intends to rely on in response to your submissions are the affidavit filed in matter CIV 1768 of 2004 on 23 February 2005 & the affidavit filed in this matter during April 2015.
Kindly take this email correspondence as evidence of conferral under Order 59 rule 9.
3 On 10 December, two documents were lodged at Central Office on behalf of Mr Lashansky.
4 The first, on its face, is a chamber summons returnable on 16 December 2015 at 10.00 am (a time chosen by Mr Lashansky, although he later sent an email and medical certificate regarding his unfitness to attend on that day). The document does not comply with O 59 r 4 of the Rules of the Supreme Court 1971 (WA). Nor could it be served within the time prescribed by O 59 r 5 for a hearing on 16 December, and no application has been made to allow a shorter period of service. No attempt was made to ascertain the availability of either the applicant's representatives or the court on the date specified by Mr Lashansky.
5 The orders sought in the summons include that 'proceedings in this matter be stayed/and or a further extension of time be granted to the Respondent to file submissions in answer to the submissions of the Applicant filed on 9 December 2015 in this matter': order 2. Orders 3 and 4 are not in the form of orders: both are arguments or submissions. Orders 5, 6 and 7 seek discovery of a confidential settlement entered into by the State in an unrelated matter; an order for the examination of the solicitor who had carriage of the matter for the applicant; discovery of the applicant's time sheets; and a stay until the applicant is 'placed in funds by Legal Aid Western Australia'.
6 The second document is described as a 'memorandum supporting waiver of conferral'. The document is argumentative and irrelevant to the question of conferral or its waiver.
7 Neither document could be accepted for filing.
8 The way in which Mr Lashansky has approached the order for submissions on costs is consistent with the way in which he has conducted the action throughout. It is unacceptable.
Costs of the application
9 The costs of and incidental to all proceedings in court are in the discretion of the court: Supreme Court Act 1935 (WA) s 37(1). The discretion must be exercised judicially, but it is otherwise unconfined: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [21] - [22], [134]; Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 540, 558, 562, 568. While the discretion to award costs cannot be shackled, and considerations which might guide the exercise of the discretion cannot be rigidly applied, the authorities offer guidance on the proper exercise of the discretion. Consistency in the exercise of judicial discretion is important in the administration of justice. Giving proper consideration to the rules of court and decisions in other cases is an important measure in ensuring consistency.
10 The general rule in O 66 r 1 of the Rules of the Supreme Court, while it is expressed not to limit the general discretion conferred on the court, is that the court will generally order that the successful party to any action or matter recover his costs.
11 In the present matter, the applicant has been wholly successful. The applicant also submits that Mr Lashansky failed to file any submissions or evidence, did not formally develop any case in response to the application, and protracted the proceedings by reference to irrelevant material, filing interlocutory applications that were without merit, and failing to comply with orders to file submissions and evidence. Those submissions accurately reflect the way in which Mr Lashansky responded to the application.
12 The email sent on behalf of Mr Lashansky is not persuasive to the contrary. In particular, the request for discovery of time sheets is irrelevant. Costs will be taxed. I am concerned only with who is liable to pay them.
13 I have considered whether the nature of the jurisdiction exercised by the court under the Vexatious Proceedings Restriction Act is such that costs should not be awarded. I note that an order for costs by the trial judge in a matter under the Act was upheld by the Court of Appeal in Michael v Western Australian Attorney General [2006] WASCA 123. Costs on appeal were also made on appeal in proceedings relating to the Act in Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231 (S). Costs orders were made at first instance in The Principal Registrar of the Supreme Court v Chin [2012] WASC 7 and Attorney General for Western Australia v MTI [2014] WASC 303.
14 In the circumstances, I am satisfied this is a matter where the costs should be awarded to the successful party. I will order that the respondent pay the applicant's costs of the application filed 4 October 2013, to be taxed.
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