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Lashansky v Legal Practice Board

Lashansky v Legal Practice Board

Case [2011] WASCA 42 23 February 2011

Injunction

Appeal

Jurisdiction

Civil Litigation & Procedure

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: LASHANSKY -v- LEGAL PRACTICE BOARD [2011] WASCA 42

CORAM: PULLIN JA
NEWNES JA

HEARD: 28 JANUARY 2011

DELIVERED : 23 FEBRUARY 2011

FILE NO/S: CACV 69 of 2010

BETWEEN: ROBERT JAMES LASHANSKY
Appellant
AND
LEGAL PRACTICE BOARD
First Respondent
HILARY ORR
Second Respondent
PRICE SIERAKOWSKI
Third Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :BEECH J
Citation  :LASHANSKY -v- LEGAL PRACTICE BOARD [No 2] [2010] WASC 159
File No  :CIV 1768 of 2004

Catchwords:

Practice and procedure - Application for injunction to restrain solicitors acting in appeal - Whether Court of Appeal has power to issue injunction - Whether appeal should be dismissed under r 43(2)(g)(i) and r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA) - Grounds of appeal fail to comply with Rules - No arguable grounds of appeal

Legislation:

Legal Practitioners Act 1893 (WA)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     In person
First Respondent           :     Mr M D Cuerden
Second Respondent      :     Mr C Touyz
Third Respondent          :     Mr R C Di Renzo

Solicitors:

Appellant:     In person
First Respondent           :     McCallum Donovan Sweeney
Second Respondent      :     Hammond King Touyz
Third Respondent          :     Price Sierakowski

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

British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2
Fay v Roads and Traffic Authority of New South Wales (1990) 20 NSWLR 665
Jesasu Pty Ltd v Minister for Mineral Resources (1987) 11 NSWLR 110
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Lashansky v Legal Practice Board [No 2] [2010] WASC 159
Legal Practitioners Complaints Committee v De Alwis [2006] WASCA 198
Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211
McVeigh v Linen House Pty Ltd [1999] VSCA 138; (1999) 3 VR 394
Ridout Nominees Pty Ltd v Commonwealth Bank of Australia [2003] WASCA 158
Sergi v Director of Public Prosecutions [1991] NSWCA 244
Vakauta v Kelly (1988) 13 NSWLR 502

PULLIN JA: I agree with Newnes JA for the reasons he gives that leave to appeal should be refused.
During the hearing the appellant made an oral application that I disqualify myself. I refused to do so. These are my reasons for that decision. The appellant advanced two reasons in support of his application.
The first was because of a statement I made during the course of my reasons for decision in Ridout Nominees Pty Ltd v Commonwealth Bank of Australia [2003] WASCA 158 [17]. That was not an appeal in which the appellant was a party but he had at some time, been on the record for the plaintiff. The appellant did not appear as counsel on the hearing of that appeal. In my reasons I said:
When the case was conducted at trial before Wheeler J, the appellants were represented by solicitors and experienced senior counsel. When the appeal was instituted on 17 April 2000, the appellants…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lashansky v Legal Practice Board

Details

AGLC: Lashansky v Legal Practice Board [2011] WASCA 42
Case: [2011] WASCA 42
Decision Date: 23 FEBRUARY 2011

CaseChat Overview and Summary

The case of Lashansky v Legal Practice Board involved an application by the appellant, Lashansky, for an injunction to prevent the respondent, Legal Practice Board, from acting in an appeal against his legal practice. The Supreme Court of Western Australia was tasked with determining the validity of the application. The central legal issues were whether the Court of Appeal had the power to issue such an injunction and whether the appeal should be dismissed based on procedural grounds under the Supreme Court (Court of Appeal) Rules 2005 (WA). Specifically, the court examined whether the grounds of appeal complied with the rules and if there were any arguable grounds of appeal.

The court held that the Court of Appeal does not possess the inherent jurisdiction to issue an injunction to restrain solicitors from acting in an appeal. This decision was based on the principle that the Court of Appeal's role is confined to reviewing the correctness of the lower court's decision, and it does not have the power to intervene in the proceedings below. Furthermore, the court found that the grounds of appeal failed to comply with the procedural rules as they did not present arguable grounds for the appeal. The court concluded that the appeal was without merit and should be dismissed under the relevant rules.

The court's reasoning was grounded in the established legal framework governing the powers of the Court of Appeal and the procedural requirements for appeals. It determined that the appeal did not meet the necessary threshold for consideration, and thus, the application for an injunction was denied. The court further found that the grounds of appeal were deficient, leading to the dismissal of the appeal. The final orders of the court reflected these conclusions, dismissing the appeal and denying the application for an injunction.

Orders