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Lashansky v Legal Practice Board [No 2]

Lashansky v Legal Practice Board [No 2]

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Case Copied 30 June 2010 30 min read

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LASHANSKY -v- LEGAL PRACTICE BOARD [No 2] [2010] WASC 159

CORAM: BEECH J

HEARD: 23 JUNE 2010

DELIVERED : 23 JUNE 2010

PUBLISHED : 30 JUNE 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:

Practice and procedure - Case management - Inactive Cases List - Whether any party had taken any procedural step in the action in preceding 12 months - Whether action validly put on the Inactive Cases List - Whether order should be made that the case be removed from the Inactive Cases List - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 29A r 18A, O 29A r 19

Result:

Application for removal from Inactive Cases List dismissed

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):

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Carltona Ltd v Commissioner of Works [1943] 2 All ER 560
Freehill Hollingdale & Page v Bandwill Pty Ltd [2000] WASCA 150
Lashansky v Legal Practice Board [2006] WASC 247
Lashansky v Legal Practice Board [2010] WASCA 18
Legal Practice Board v Lashansky [2008] WASC 294
Legal Practice Board v Lashansky [No 2] [2009] WASC 78
Lifelong Investments Pty Ltd v Karageorge [2008] WASC 86
Love v Griffiths [2008] WASC 168
O'Reilly v The Commissioner of The State Bank of Victoria (1983) 153 CLR 1
Re Patrick John Walker, Commissioner for Fair Trading; Ex Parte Fremantle Islamic Association Incorporated [2003] WASC 252
Swick Nominees Pty Ltd v Norncott Pty Ltd [2008] WASC 24
The State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146

BEECH J:

Introduction

This action was placed on the Inactive Cases List on 24 December 2009. A letter dated 24 December 2009 from the court to the plaintiff, Mr Lashansky, (who is self‑represented) and the solicitors for the defendants stated that the 'above matter has been transferred to the Inactive Cases List because no party has taken any procedural step in the matter for 12 months'. The letter gave notice that a case that remains on the Inactive Cases List for a continuous six‑month period will be taken to have been dismissed for want of prosecution, referring to O 29A r 21 of the Rules of the Supreme Court 1971 (WA).
The letter was stated to be from the Principal Registrar. It was signed by my then associate, 'pp' (per proc), that is, on behalf the Principal Registrar. The plaintiff relies on that as a ground of alleged invalidity of the entry of…

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
Decision Date: 30 JUNE 2010

CaseChat Overview and Summary

The matter of Lashansky v Legal Practice Board [No 2] was before the Supreme Court of South Australia. The plaintiff, Lashansky, sought an order to have the case removed from the Inactive Cases List, arguing that the Board had failed to take any procedural steps in the case over the preceding 12 months. The court was required to determine whether the action was validly placed on the Inactive Cases List and, if so, whether an order should be made to remove the case from that list. The central issue was whether any party had taken any procedural step in the action in the preceding 12 months, and if not, whether the Board's inaction justified the case being removed from the Inactive Cases List.

The court considered the nature of the Inactive Cases List and its purpose, which is to manage court resources by identifying cases that have been inactive for a certain period. It was noted that the Board had not taken any procedural steps in the action over the preceding 12 months, which could potentially justify the case being placed on the Inactive Cases List. However, the court also had to consider whether the inactivity was justified and whether any party had taken any steps to prevent the case from becoming inactive. The court found that the Board had not taken any steps to prevent the case from becoming inactive, and that the inactivity was not justified. As a result, the court determined that the case should be removed from the Inactive Cases List.

The court's decision was based on its assessment of the facts of the case, and it was noted that each case would turn on its own facts. The court emphasised the importance of parties taking procedural steps in their cases to prevent them from becoming inactive, and the need for the court to manage its resources effectively. The court made an order that the case be removed from the Inactive Cases List, and that the matter be placed back on the active list for further proceedings. This decision highlights the importance of case management and the need for parties to take proactive steps in their cases to avoid them becoming inactive.

Orders