Lashansky v Howell - [2004] WASCA 252

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: LASHANSKY -v- HOWELL & ORS [2004] WASCA 252

CORAM: MCKECHNIE J
JENKINS J

HEARD: 19 OCTOBER 2004

DELIVERED : 19 OCTOBER 2004

FILE NO/S: FUL 48 of 2004

MATTER :Legal Practitioners Act 1893 (WA) and Legal Practice Act 2004 (WA)

BETWEEN: ROBERT JAMES LASHANSKY
Appellant
AND
DIANE HOWELL
MICHAEL JOHN BUSS QC
BRUCE JAMES HAMILTON GOETZE
JOHN ROBERT BRODERICK LEY
PETER ROBERT JORDAN
CATHERINE FRANCES MARY COOMBS
STEVEN PENGLIS
First Respondents
THE ATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MALCOLM CJ, STEYTLER J, TEMPLEMAN J
Citation  :LASHANSKY V LAW COMPLAINTS OFFICER
File No  :FUL 7 of 2001
Result  :Appeal dismissed

Catchwords:

Practice and procedure - Applications to dismiss appeal for want of prosecution - Non-compliance with time limits - Appeal without merit - Court's jurisdiction - Jurisdiction of the Full Court to discipline legal practitioners

Legislation:

Nil

Result:

Applications granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     In person
First Respondents         :     Mr R J Davies QC & Ms K A Williams
Second Respondent       :     Mr G T W Tannin SC & Mr J F O'Sullivan

Solicitors:

Appellant:     In person
First Respondents         :     Minter Ellison
Second Respondent       :     State Solicitor

Case(s) referred to in judgment(s):

Lashansky v The Legal Practitioners Complaints Committee [2002] WASCA 326

Case(s) also cited:

Nil

MCKECHNIE J: The Court has before it two motions for dismissal of an appeal, FUL 48 of 2004, for want of prosecution. It is necessary to outline the background in order to understand the basis of the motions.
On 27 November 2000 the appellant, whom I will hereafter refer to as the practitioner, was suspended from practice as a legal practitioner following a determination of references by the Legal Practitioners Disciplinary Tribunal. By an originating motion and report to the Full Court, each dated 11 January 2001 and given the number LPD 1 of 2001, application was made by the Complaints Committee for an order that the practitioner be struck off the roll. That application has yet to be heard.
The practitioner filed a notice of appeal, FUL 7 of 2001, seeking to appeal against the decision of the Tribunal. An application to dismiss that appeal for want of prosecution was taken and, it appears that, on 4 December 2002 the Full Court dismissed the appeal for want of prosecution: see Lashansky v The Legal Practitioners Complaints Committee [2002] WASCA 326.
Subsequently, however, it appears that decision was per incuriam because there was material which may not have been drawn to the attention of the Court. The appeal FUL 7 of 2001 has been reinstated as of 4 February 2004.
At the time when the appeal was reinstated, Templeman J was appointed to case-manage and make directions in order to enable the progress of both that appeal, FUL 7 of 2001, and the reference, LPD 1 of 2001. Therefore, on 5 April 2004, Templeman J sat as the Judge of Appeal, exercising powers under the Supreme Court Act s 61, to make directions for the Full Court hearing. He made it very clear that his sole power and jurisdiction was under s 61 and that he was only going to give directions.
One of the matters before him was the practitioner's motion - a lengthy motion - filed in LPD 1 of 2001. It dealt with many matters, including an application to have the practice certificates of certain practitioners summarily cancelled within the inherent jurisdiction of this Court. The motion sought a similar order in respect of the Attorney‑General. Those practitioners are the applicants in this application. The Attorney‑General brings a separate application.
Templeman J dealt with the practitioner's motion on 5 April 2003. He made directions and orders in respect of some procedural matters. He did not consider he had jurisdiction to make orders in relation to the practitioners and the Attorney‑General because of Supreme Court Act s 61 and, after argument, he said:
"I'm not prepared to send that forward to the Full Court, to this Full Court which is dealing with your appeal. I'm not prepared to do that and I don't think it's appropriate. That effectively means that I should dismiss it, I think. If you want to renew an application somewhere else, then that's a matter for you, but my view is that although I accept that the court, and indeed the act says so, has its own jurisdiction to deal with practitioners, I think it's inappropriate for an application of such seriousness to be made direct to the Full Court.
If there is a complaint, it should be directed to the complaints committee and dealt with in the appropriate manner. Don't tell me you won't get a fair hearing before the complaints committee because I wouldn't accept that. Nobody would sit on the complaints committee who had any interest whatever in the complaint."
At the time when Templeman J made that ruling he was dealing only with the application by the Attorney‑General but, later in the hearing, he became aware that the practitioners also were making similar application. He dealt with their application, saying that it was his intention that the motion relating to the orders sought against them be dismissed. He said:
"The reason for that is that it seems to me that the procedure by way of motion is entirely inappropriate when there are procedures laid down in the Legal Practice Act for bringing of such complaints. In those circumstances, it seems to me entirely inappropriate to bring a matter before the Full Court in the first instance."
On 23 April 2004 the practitioner lodged the notice of appeal number FUL 48 of 2004 against the decision of Templeman J dismissing the motion to have the practitioners and the Attorney‑General removed from the roll. Correspondence has since flowed between the parties and the Court, and the practitioner, and the following seems to emerge:
•No draft appeal book index has been prepared.
•No appointment has been made by the practitioner, or he certainly has not attended one, to settle the appeal book index.
•The appeal has not been entered for hearing.
The Rules of the Supreme Court by O 63 lay down a strict timetable for the doing of each of these steps. They are important procedural steps. The time for entering the appeal was 16 July 2004. The practitioner has been put on notice at various times by each of the applicants as to the need for things to be done.
There has been no affidavit filed by the practitioner in reply to the affidavits filed in support of the applications. The practitioner claims that he has only known about these applications since last Thursday, and has not had time to do things. He points to the fact that he has sworn an affidavit, as have some other people, but the affidavits are not bound, much less copied and ready for filing. However, the practitioner appears to me to have been well aware throughout that he had failed to comply with the time limits and has had sufficient notice to put material before this Court.
The practitioner's submissions before us today have been, I have to say, diffuse and confusing to follow, but we have endeavoured to try and understand them and give him full rein to present coherent argument on the applications. Doing the best I can, it seems to me that the practitioner conceded that counsel for the Attorney‑General was "1000 per cent" right that the time limits were not met. He suggests that this was because of the amount of work that had to be done in respect of the other orders made by Templeman J on 5 April 2004 with a view to progressing the hearing, especially listening to and correcting the transcript of the original hearing of the Tribunal.
The thrust of the practitioner's argument seems to be that he thought that it is necessary for the court hearing the appeal to be fully seized of all of the matters raised which he wishes to agitate in his appeal FUL 7 of 2001, and that this application cannot proceed by itself. I do not accept that submission.
In my opinion, the practitioner has failed to take any procedural steps and, notwithstanding the latitude given to him, has not satisfactorily explained or given any reason why he has failed to take steps to enter this appeal for hearing. Therefore, the discretion to dismiss for want of prosecution is enlivened.
As Mr Davies QC, who appears for the practitioners points out, the fact that the jurisdiction is enlivened does not mean that an order will be made automatically. It is also necessary to have some regard to the merits of the appeal.
It is important, I think, just to reflect upon the way in which this matter was raised before Templeman J. I have dealt with that to some degree. Templeman J was sitting to give directions for an appeal when the practitioner lodged a motion which sought completely different relief against parties who were not parties to the appeal. The motion affected each of the practitioners, both severally and jointly. At first glance this was an entirely inappropriate method. The motion is probably incompetent to the extent that it joins others and seeks different orders in respect of those persons from those orders which would normally follow the appeal.
There is no issue raised by counsel, and Templeman J accepted, as do I, that this Court retains an inherent power in appropriate circumstances to exercise discipline over practitioners. However, when there is a statutory regime in place for complaints of unprofessional conduct to be heard and determined then the Full Court will be generally slow to exercise the power of its own motion. Whether it should do so is a matter for the exercise of judicial discretion.
Some of the factors to be taken into account are:
•the desirability, where possible, of an intermediate trial court or tribunal undertaking a fact-finding exercise before a matter reaches the Full Court;
•the necessity for investigation;
•the possibility of a lengthy trial in a matter which, such as this, is unlikely to be able to be resolved just on affidavit or documents.
All of those matters would lead me to conclude, strongly, that the method chosen was entirely inappropriate, even if it was competent, to attach a motion to discipline practitioners to a motion for directions for an appeal.
However, the question is not really how I would have exercised the discretion; the question is whether it was open for Templeman J to do so. This is the question because the merits of the appeal have to be identified and resolved to some degree. It seems to me that Templeman J exercised his discretion for reasons which are entirely explicable, and the exercise of his discretion was not only open but, in the circumstances, inevitable.
It follows that the appeal simply has no prospect of success. That being so, and the fact that the practitioner has failed to comply with the time limits, in my opinion, it is appropriate to allow in each application

and make orders dismissing the appeal in respect of both the first and second respondents.

JENKINS J: I agree and I have nothing further to add.