Lashansky v Legal Practice Board - [2010] WASCA 18

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: LASHANSKY -v- LEGAL PRACTICE BOARD [2010] WASCA 18

CORAM: OWEN JA
NEWNES JA

HEARD: 5 FEBRUARY 2010

DELIVERED : 5 FEBRUARY 2010

FILE NO/S: CACV 38 of 2009

BETWEEN: ROBERT JAMES LASHANSKY
Appellant
AND
LEGAL PRACTICE BOARD
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :TEMPLEMAN J
Citation  :LEGAL PRACTICE BOARD -v- LASHANSKY [No 2] [2009] WASC 78
File No  :LPD 3 of 2000

Catchwords:

Practice and procedure - Undertaking as to damages for a freezing order relating to bank accounts - Freezing order discharged by consent - Whether undertaking as to damages should be made retrospectively - Turns on own facts

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr M D Cuerden

Solicitors:

Appellant: In person
Respondent: Legal Practice Board

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

Legal Practice Board v Lashansky [No 2] [2009] WASCA 78
University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481

JUDGMENT OF THE COURT: The matter came before the Court on 5 February 2010 on a registrar's notice for the appellant to show cause why the appeal should not be dismissed under r 43(2)(g) of the Supreme Court (Court of Appeal) Rules 2005 because none of the grounds of appeal have a reasonable prospect of succeeding and (or) due to the appellant's failure to comply with the requirements of the rules and in particular r 32.
At the conclusion of the hearing we announced that the appeal would be dismissed and orders to that effect and dealing with the costs of the appeal were made. We said we would publish reasons for decision at a later date. These are those reasons.

The decision appealed from

On 30 March 2009 Templeman J dismissed the appellant's application that the respondent provide an undertaking as to damages in respect of a freezing order that McKechnie J had granted on 29 November 2000: see Legal Practice Board v Lashansky [No 2] [2009] WASCA 78. It is necessary to recite some of the history of the proceedings that eventually came before Templeman J. We do so by reference to [1] to [13] of his Honour's reasons.
In November 2000, the Legal Practitioners Disciplinary Tribunal suspended the appellant from legal practice and proposed to make and transmit a report to the Full Court.
On 29 November 2000, the respondent applied by originating motion to McKechnie J, ex parte, and without notice to the appellant, for orders freezing his trust and general office bank accounts. The application was made under s 58B of the Legal Practitioners Act 1893 (WA) which provides:
(1)Where a Judge, on the application of the Board, is satisfied -
(a)that there are reasonable grounds for believing -
(i)that there is, or may be, a deficiency in any trust account of a practitioner; or
(ii)that there has been…

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.

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Details

Case: [2010] WASCA 18
Decision Date: 5 FEBRUARY 2010

CaseChat Overview and Summary

In the matter of Lashansky v Legal Practice Board, the appellant sought an undertaking from the respondent regarding damages associated with a freezing order that had been previously issued by McKechnie J. The respondent had applied for the freezing order under the Legal Practitioners Act 1893 (WA) and had subsequently appointed a supervising solicitor to manage the appellant's practice. The dispute arose after Templeman J dismissed the appellant's application for an undertaking as to damages in respect of the freezing order, which had been granted on 29 November 2000. The appellant's appeal against this decision was subsequently dismissed by the court. The primary legal issue before the court was whether an undertaking as to damages for a freezing order should be made retrospectively in the circumstances where the order had already been discharged by consent. The court had to consider the unique facts of this case to determine whether such an undertaking should be required, given that the order had already been discharged.

The court's reasoning was based on the specific facts of this case, including the history of the proceedings and the provisions of the Legal Practitioners Act 1893 (WA). The court examined the circumstances under which the freezing order had been granted and the subsequent actions taken by the respondent, such as the appointment of a supervising solicitor. The court also considered the timing of the appellant's application for an undertaking as to damages, which was made after the freezing order had been discharged by consent. Given these facts, the court found that the appellant's application did not have a reasonable prospect of succeeding, and therefore dismissed the appeal. The court also noted the appellant's failure to comply with certain procedural requirements, which contributed to the dismissal of the appeal.

The outcome of the case was that the appeal was dismissed, and orders were made accordingly. The court did not grant the appellant's request for an undertaking as to damages, as it found that the circumstances did not warrant such a remedy. Additionally, the court addressed the costs of the appeal, determining that they should be borne by the appellant. The court's decision was based on a careful consideration of the facts and the law, and it highlighted the importance of procedural compliance in legal proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: The matter came before the Court on 5 February 2010 on a registrar's notice for the appellant to show cause why the appeal should not be dismissed under r 43(2)(g) of the Supreme Court (Court of Appeal) Rules 2005 because none of the grounds of appeal have a reasonable prospect of succeeding and (or) due to the appellant's failure to comply with the requirements of the rules and in particular r 32. At the conclusion of the hearing we announced that the appeal would be dismissed and orders to that effect and dealing with the costs of the appeal were made. We said we would publish reasons for decision at a later date. These are those reasons. On 30 March 2009 Templeman J dismissed the appellant's application that the respondent provide an undertaking as to damages in respect of a freezing order that McKechnie J had granted on 29 November 2000: see Legal Practice Board v Lashansky [No 2] [2009] WASCA 78. It is necessary to recite some of the history of the proceedings that eventually came before Templeman J. We do so by reference to [1] to [13] of his Honour's reasons. In November 2000, the Legal Practitioners Disciplinary Tribunal suspended the appellant from legal practice and proposed to make and transmit a report to the Full Court. On 29 November 2000, the respondent applied by originating motion to McKechnie J, ex parte, and without notice to the appellant, for orders freezing his trust and general office bank accounts. The application was made under s 58B of the Legal Practitioners Act 1893 (WA) which provides:(1)Where a Judge, on the application of the Board, is satisfied - (a)that there are reasonable grounds for believing -(i)that there is, or may be, a deficiency in any trust account of a practitioner; or(ii)that there has been undue delay on the part of a practitioner in properly paying or applying trust moneys to or on behalf of a person or persons for whose use or benefit they have been received;or(b)that a practitioner is suspended from practising,the Judge may make an order directed to the practitioner and to the bankers of that practitioner and their respective servants and agents restraining dealings in all or any of the bank accounts of the practitioner, subject to such terms and conditions as the Judge thinks fit. McKechnie J made orders in those terms on that day. Also on that day, the respondent exercised its powers to appoint a supervising solicitor of the appellant's practice. The appointment was made under s 58D of the Act which provides, relevantly:(1)If an order other than an order for revocation is made under [s 58B], the Board, during the currency of the order - (a)may, on such terms and conditions as to remuneration and indemnity as the Board thinks fit, appoint a certificated practitioner to be supervising solicitor of the practice On 13 December 2000, the supervising solicitor and the respondent's law complaints officer effected a forcible entry into appellant's premises in his absence. They removed his client files and personal papers.

Ratio Decidendi

Legal Principle Established

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