Lashansky v Coombs
[2010] WASCA 130
•22 JANUARY 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LASHANSKY -v- COOMBS [2010] WASCA 130
CORAM: OWEN JA
PULLIN JA
HEARD: 22 JANUARY 2010
DELIVERED : 22 JANUARY 2010
FILE NO/S: CACV 127 of 2009
BETWEEN: ROBERT JAMES LASHANSKY
Appellant
AND
CATHERINE FRANCIS MARY COOMBS
First RespondentTHE LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA
Second Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :NEWNES J
Citation :LASHANSKY -v- COOMBS [No 2] [2009] WASC 87
File No :CIV 1437 of 2008
Catchwords:
Appeal - Appeal from interlocutory decision - Leave to appeal required under s 60(1) Supreme Court Act 1935 (WA) - Noncompliance with Supreme Court (Court of Appeal) Rules 2005 (WA) r 43(2)(g) - Appeal dismissed for noncompliance with the rules
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: No appearance
First Respondent : Mr M D Cuerden
Second Respondent : Mr M D Cuerden
Solicitors:
Appellant: No appearance
First Respondent : Legal Practice Board
Second Respondent : Legal Practice Board
Case(s) referred to in judgment(s):
Lashansky v Coombs [No 2] [2009] WASC 87
Lashansky v Coombs [No 3] [2009] WASC 300
OWEN JA: I agree with Pullin JA and there is nothing I can usefully add. It follows that due to non‑compliance with the rules, and in particular r 43(2)(g), the appeal will be dismissed for the reasons to be set out by Pullin JA.
PULLIN JA: The appellant commenced an action against the respondents alleging that slanderous words were spoken by the first respondent in the foyer of this court on 26 April 2002 and published to some former clients of the appellant, another legal practitioner, and bystanders. One of the minutes of the appellant's statement of claim alleges that the second respondent appears to have embarked on a campaign of denigration of the appellant through the media. There were also some uncertain allegations of republication of the words.
In 2008, the appellant's statement of claim was struck out and he was given leave to replead within a specified time. He did not replead within that time. On 7 April 2009 on the respondent's application for summary judgment the appellant was given further time, namely until 12 May 2009, to file an amended statement of claim. This order was made by Newnes J (see Lashansky v Coombs [No 2] [2009] WASC 87).
Through these proceedings the appellant has sought adjournments for various reasons and has failed to comply with rules. In Lashansky v Coombs, Newnes J said:
The plaintiff's attitude to this litigation has tended to give the impression (incorrectly, I hope) that he considers the rules and orders of the court do not apply, or do not apply with equal force, to him. Any such belief would, of course, be seriously mistaken. The plaintiff has an obligation to ensure that the steps required to be taken on his part in the action are taken in a proper and timely way. If he fails to do so he runs a serious risk that the action will be dismissed at an interlocutory stage [45].
Proceedings then came on before Le Miere J on 23 July 2009 in the circumstances set out in Le Miere J's reasons in Lashansky v Coombs [No 3] [2009] WASC 300 [7] and [8] where his Honour said:
The plaintiff did not file or serve a minute of amended statement of claim by 12 May 2009. On 12 May 2009 the plaintiff filed a chamber summons seeking, amongst other things, an order that the time allowed by Newnes J to file and serve a minute of amended statement of claim be extended until Friday, 26 June 2009. On 15 May 2009 the defendant entered judgment pursuant to the order made by Newnes J on 7 April 2009.
The plaintiff's application to extend time came on for hearing before me on 9 June 2009. On that occasion the plaintiff sought an adjournment on the
ground that he had fallen violently ill the previous night and was not able to argue the matter. I granted the adjournment and adjourned the matter for hearing on 18 June 2009.
On 18 June 2009 the appellant sought another adjournment which was granted until 23 July 2009. Le Miere J considered the circumstances of the application and then in [27] said:
Having regard to the circumstances in which the springing order was made, the reason for the plaintiff's non-compliance with the springing order, the prejudice to the plaintiff if the time is not extended, the prejudice to the defendants if the time is extended and the likelihood of the plaintiff prosecuting the action with reasonable expedition if the time is extended I decline to exercise my discretion to extend the time specified in the springing order. The plaintiff says that he will be unable to prosecute the action unless and until he comes into funds that enable him to afford legal representation. There is no evidence that that is likely to happen in the foreseeable future. In all the circumstances the plaintiff's application should be dismissed.
This order was made on 16 October 2009. The appellant appealed against the interlocutory decision. He filed the appeal notice in this Court on 30 October 2009 but it was not served until 2 November 2009. The appellant did not therefore commence this appeal within time, and he requires an extension of time if the appeal is to be entertained, see the Supreme Court (Court of Appeal) Rules 2005 (WA), O 27 and O 29.
The order made by Le Miere J was an interlocutory decision and the appellant therefore requires leave to appeal pursuant to s 60(1)(f) of the Supreme Court Act 1935 (WA). The appellant was then required under the rules to file and serve the appellant's case which would contain the grounds of appeal and submissions. This was required within seven days after the date on which the appeal notice was filed: see r 32(2)(a). The plaintiff failed to file and serve the appellant's case and it has still not been filed today.
By letter dated 6 November 2009 the appellant asked the second respondent to consent to an extension of time to file and serve the case. By letter dated 12 November 2009 the solicitor for the respondents advised there was no consent. On 27 November 2009 the Court of Appeal registrar wrote to the appellant and advised that if he did not file his case by 4 December 2009 the appeal may be referred to the court to consider whether the appeal should be dismissed under r 43 for failure to comply with the rules. The matter has now been listed today to consider why the appeal should not be dismissed for non‑compliance with the rules, and in particular r 43(2)(g). The appellant wrote to the registrar by letter dated 7 December 2009. That letter read:
We advise that Mr Lashansky has had to return to South Africa on an urgent family matter. He will contact the Board upon his return in early January 2010.
That letter related to this appeal. I am satisfied that the appellant was notified of the hearing today. I have seen a copy of the registrar's notice to attend today. It was sent on 8 January 2010 by fax to his address for service. Mr Lashansky's letter of 7 December 2009 suggested that he would be returning in early January of this year, but the affidavit which was filed on the other matter which was listed today (CACV 38 of 2009) suggests that he is still in South Africa. Although he is in South Africa he is clearly in receipt of material sent to his address for service. This is evident because he was notified of the hearing of that other matter, CACV 38 of 2009, today by notice to the same address for service which he has in this case. On the other case (CACV 38 of 2009) he applied for vacation of the hearing which had been listed today, so it is quite clear that he is receiving material sent to his address for service in Western Australia. In my opinion the history of this matter justifies a dismissal of the appeal because of non‑compliance with the rules. The appellant is a former legal practitioner and well knows the importance of the rules and he has been on notice about the consequences of non‑compliance. The appeal should therefore be dismissed and I would so order.
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