LASHANSKY -v- LEGAL PRACTICE BOARD [No 2] [2010] WASC 159 (S)

Pending Appeal

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2010] WASC 159 (S)
Published:	30/06/2010
Case No:	CIV:1768/2004	Heard:	23 JUNE 2010 & ON THE PAPERS
Coram:	BEECH J	Delivered:	23/06/10
Supplementary Delivered:	25/08/10
No of pages:	6	Judgment Part:	1 of 1
Result:	Costs awarded against plaintiff Defendants' application for indemnity costs unsuccessful
Category:	B
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Parties:	ROBERT JAMES LASHANSKY LEGAL PRACTICE BOARD HILLARY ELIZABETH ORR PRICE SIERAKOWSKI
Catchwords:	Costs Costs of unsuccessful application for order that the case be removed from the Inactive Cases List Whether indemnity costs should be awarded
Legislation:	Nil
Case References:	Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122(S); (2003) 28 WAR 95 Johnson v Johnson [No 3] [2000] HCA 48; (2000) 201 CLR 488 Lashansky v Legal Practice Board [No 2] [2010] WASC 159 MTI v SUL [No 2] [2010] WASCA 58 Smolarek v Roper [2009] WASCA 124 Unioil International Pty Ltd v Deloitte Touche Tohmatsu [No 2] (1997) 18 WAR 190

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : LASHANSKY -v- LEGAL PRACTICE BOARD [No 2] [2010] WASC 159 (S) CORAM : BEECH J HEARD : 23 JUNE 2010 & ON THE PAPERS DELIVERED : 23 JUNE 2010 PUBLISHED : 30 JUNE 2010 SUPPLEMENTARY
DECISION : 25 AUGUST 2010 FILE NO/S : CIV 1768 of 2004 BETWEEN : ROBERT JAMES LASHANSKY

Plaintiff

AND

LEGAL PRACTICE BOARD

First Defendant

HILLARY ELIZABETH ORR

Second Defendant

PRICE SIERAKOWSKI

Third Defendant

Catchwords:

Costs - Costs of unsuccessful application for order that the case be removed from the Inactive Cases List - Whether indemnity costs should be awarded

(Page 2)

Legislation:

Nil

Result:

Costs awarded against plaintiff

Defendants' application for indemnity costs unsuccessful

Category: B

Representation:

Counsel:

Plaintiff : In person

First Defendant : Mr P G Donovan

Second Defendant : No appearance

Third Defendant : Mr R C Di Renzo

Solicitors:

Plaintiff : In person

First Defendant : McCallum Donovan Sweeney

Second Defendant : No appearance

Third Defendant : Price Sierakowski

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

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122(S); (2003) 28 WAR 95
Johnson v Johnson [No 3] [2000] HCA 48; (2000) 201 CLR 488
Lashansky v Legal Practice Board [No 2] [2010] WASC 159
MTI v SUL [No 2] [2010] WASCA 58
Smolarek v Roper [2009] WASCA 124
Unioil International Pty Ltd v Deloitte Touche Tohmatsu [No 2] (1997) 18 WAR 190

(Page 3)

BEECH J

Introduction

1 By chamber summons dated 18 June 2010 the plaintiff applied for orders including:

(a) an order removing the action from the Inactive Cases List; or

(b) leave to set aside the entry of the action into the Inactive Cases List as an irregularity.

2 The application was heard on 23 June 2010. I…

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] WASC 159 (S)
Decision Date: 30 JUNE 2010

CaseChat Overview and Summary

In Lashansky v Legal Practice Board [No 2], the plaintiff, Lashansky, sought an order for the removal of his case from the Inactive Cases List. The defendants, the Legal Practice Board, opposed the application and argued that it was an abuse of process. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issue before the court was whether Lashansky was entitled to indemnity costs in light of his unsuccessful application for the removal of his case from the Inactive Cases List. Indemnity costs are awarded when a party has acted unreasonably or vexatiously in bringing or defending a proceeding. The court had to determine if Lashansky's application was frivolous, vexatious, or an abuse of process, which would warrant such an order.

In assessing the matter, the court found that Lashansky's application was not frivolous, vexatious, or an abuse of process. The court emphasised that the plaintiff had acted with some diligence in bringing his application and that the merits of the application itself warranted consideration. Consequently, the court did not award indemnity costs against the Legal Practice Board. However, the court did find that Lashansky's application was unsuccessful and ordered him to pay the defendants' costs.

The court's decision in Lashansky v Legal Practice Board [No 2] highlights the importance of assessing the merits of a party's application when considering indemnity costs. The court's refusal to award indemnity costs to the defendants underscores the need for a clear demonstration of frivolous, vexatious, or abusive conduct before such an order is made. The court's final orders included the unsuccessful application for indemnity costs by the defendants and a costs order against the plaintiff.

Orders

Orders of the court

Costs awarded against plaintiff

Defendants' application for indemnity costs unsuccessful

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.