Lashansky v Legal Practice Board [No 2]
[2010] WASC 159 (S)
•30 JUNE 2010
LASHANSKY -v- LEGAL PRACTICE BOARD [No 2] [2010] WASC 159 (S)
Pending Appeal
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2010] WASC 159 (S) | |
| 30/06/2010 | |||
| Case No: | CIV:1768/2004 | 23 JUNE 2010 & ON THE PAPERS | |
| Coram: | BEECH J | 23/06/10 | |
| 25/08/10 | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Costs awarded against plaintiff Defendants' application for indemnity costs unsuccessful | ||
| B | |||
| PDF Version |
| 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
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 dismissed the application, stating that I would publish reasons for doing so. On 30 June 2010 I published my reasons: Lashansky v Legal Practice Board [No 2] [2010] WASC 159.
3 I directed that the question of the costs of the application be determined on the papers and that:
(a) within 14 days the defendants file submissions on the question of costs;
(b) within 14 days thereafter, the plaintiff file and serve his submissions on costs; and
(c) within seven days thereafter, the defendants file any submissions in reply.
The parties' submissions
4 The first defendant applied for a costs order in its favour, on the basis that costs follow the event, together with a special costs order that the costs be taxed on an indemnity basis.
5 In support of the application for indemnity costs, the first defendant pointed to two matters. The first was the plaintiff's unexplained delay in bringing the application. The second was the plaintiff's failure to confer prior to the initiation of the application.
6 The third defendant adopted the first defendant's submissions.
7 The first defendant's submission were dated and filed 9 July 2010.
8 On 28 July 2010 my Associate received a letter dated 27 July 2010. Although the subject matter of the letter was said to be 'delay in
(Page 4)
- completing the plaintiff's submissions as to costs', the matters raised in the text of the letter were not relevant to submissions on costs. They appeared to involve some element of revisiting of the merits of the application.
9 By letter of 28 July 2010 my Associate requested advice as to when the plaintiff's submissions on costs would be provided.
10 On 4 August 2010 the plaintiff sent a letter to my Associate stating that he was still engaged in preparing his outline of submissions and an affidavit in support to dispute the facts as found by the court, and other matters. The letter concluded that the plaintiff intended to invite the defendants to abandon the judgment in their favour and agree to the reinstatement of the matter by consent.
11 By letter of 5 August 2010 my Associate wrote to the plaintiff stating that the submissions directed by the court relate solely to the question of costs, that the submissions were due on 28 July 2010 and requesting that the plaintiff's submissions be filed no later than 13 August 2010.
12 No submissions were received by 13 August 2010. By letter of that date my Associate wrote to the plaintiff stating that if no submissions were received by 4.00 pm, 20 August 2010 the court would make a decision on the papers on the question of costs in the absence of any submissions from the plaintiff.
13 On 20 August 2010 the plaintiff filed a file, containing 50 pages of submissions and 20 attached 'exhibits'. The submissions were entitled:
The plaintiff's submissions as to why the judgment delivered in Lashansky v The Legal Practice Board [No 2] [2010] WASC 159 is demonstrably wrong in that the learned Justice Beech failed in his fact-finding exercise to establish the true facts as actually existing in the matter:
Consequently the plaintiff seeks in his submissions as to costs, to expand his submissions to include submissions why Beech J should recuse himself forthwith from any further participation in the matter on the grounds of apparent or actual bias towards the plaintiff.
14 The central thrust of the submissions is captured in par 1 which states:
The Plaintiff alleges that the judgment delivered by Beech J is demonstrably wrong and cannot be sustained as being correct in fact and law.
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15 The submissions do not contain any submissions on the question now for my decision - the costs of the application I dismissed on 23 June 2010.
16 The submissions include various criticisms and attacks on the decision I have already made to dismiss the application. These criticisms are not matters for me but for an appeal court.
17 Insofar as the submissions may contend that I should recuse myself from determining the question of costs, I am not satisfied that the decision I have made gives rise to any ground for me to disqualify myself from determining the question of costs. I am not persuaded that any fair-minded lay observer might reasonably apprehend that the court might not bring an impartial and unprejudiced mind to the resolution of the question of costs that I am required to decide: see Johnson v Johnson [No 3] [2000] HCA 48; (2000) 201 CLR 488, 492; Smolarek v Roper [2009] WASCA 124 [3], [120]; and MTI v SUL [No 2] [2010] WASCA 58 [36].
The proper costs order
18 In my opinion, the ordinary rule that the costs follow the event should apply in this case. The plaintiff's application was dismissed; the plaintiff should pay the defendants' costs of this application.
19 The first and third defendants seek indemnity costs.
20 The usual costs order is that the party who succeeds in an action is awarded its costs on a party-party basis. An order for indemnity costs will be made only if there is some special or unusual feature in the case to justify departure from the ordinary practice. The court has power to make an indemnity costs order whenever justice requires it: Unioil International Pty Ltd v Deloitte Touche Tohmatsu [No 2] (1997) 18 WAR 190; Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122(S); (2003) 28 WAR 95 [8].
21 The categories of cases in which the discretion to award indemnity costs may be exercised are not closed: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, 233 - 234; Unioil International Pty Ltd (191).
22 Most of the situations in which indemnity costs have been awarded have involved an element of improper or unreasonable conduct on the part of the unsuccessful party or its advisers in the conduct of the case:
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- Flotilla Nominees Pty Ltd [9]; Colgate-Palmolive Co (233 - 234). In Flotilla Nominees Pty Ltd [9] Pullin J gave some examples:
Thus, the making of allegations of fraud knowing them to be false, or the commencement of proceedings for some ulterior motive, or in wilful disregard of known facts or the established law, or the making of allegations which ought never to have been made, or the undue prolongation of a case on groundless contentions; and even an unreasonable refusal to accept an offer of compromise, may lead to indemnity costs orders. See Colgate-Palmolive v Cussons (233). The creation of false issues by tactical denials or failures to admit the facts may, in the circumstances of particular cases, lead to such an order: Unioil's case. An action commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success, may lead to such an order because such action might be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts or the clearly established law. See Fountain Selected Meats [(Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397].
24 As can be seen, an order for indemnity costs is exceptional. I am not satisfied that the matters relied on by the defendants warrant the exceptional course of the award of indemnity costs.
25 Consequently, I would award costs on a party-party basis.
Orders
26 For the reasons given, I make the following order:
1. The plaintiff pay the first defendant's and the third defendants' costs of the application to be taxed if not agreed.
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