Lashansky v Legal Practitioners Complaints Committee

[2002] WASCA 344

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE FULL COURT (WA)

CITATION:   LASHANSKY -v- LEGAL PRACTITIONERS COMPLAINTS COMMITTEE [2002] WASCA 344

CORAM:   MURRAY J

MILLER J
ROLFE AJ

HEARD:   20 NOVEMBER 2002

DELIVERED          :   20 NOVEMBER 2002

FILE NO/S:   FUL 7 of 2001

BETWEEN:   ROBERT JAMES LASHANSKY

Appellant

AND

LEGAL PRACTITIONERS COMPLAINTS COMMITTEE
Respondent

Catchwords:

Practice and procedure - Application for stay of order suspending legal practitioner from practice

Legislation:

Nil

Result:

Application refused

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     Mr B J H Goetze

Solicitors:

Appellant:     In person

Respondent:     Minter Ellison

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

Nil

Case(s) also cited:

Nil

1. MURRAY J:  The application before the Court is for a number of orders.  It is made in a proceeding identified as FUL 7 of 2001 which is an appeal brought by Mr Lashansky against the orders made by the Legal Practitioners Disciplinary Tribunal on 27 November 2000.  I shall return to those shortly.

2. The appeal is in the course of its proceeding before the Court.  Mr Lashansky has made the process clear in his submissions to us.  Its hearing has been delayed but a hearing has been conducted and the Court's decision has been reserved in relation to the question of the grant or refusal of an extension of time in which to enter the substantive appeal for hearing so as to bring the matter on to be finally dealt with by the Court.  In relation to that particular proceeding, Mr Lashansky makes submissions which are effectively to put before the Court the view that he has good prospects of success.

3. Be that as it may, it seems to us that the matter is to be dealt with on this basis:  The order of the Disciplinary Tribunal was that the practitioner was guilty of unprofessional conduct in respect of the matters before the Tribunal and that a report be made and transmitted to the Full Court for its attention under the Legal Practitioners Act 1893 (WA).

4. In the meantime, the order was made that the practitioner be suspended from practice as from the date of its determination, 27 November 2000. That is the exercise of a power to be found in s 29A(2) of the Legal Practitioners Act and the provisions of that Act make it abundantly clear that where the Tribunal exercises that power to suspend the practitioner from practice, the suspension continues pending the determination of the report transmitted to the Full Court.  It is not a suspension from practice pursuant to s 29A(3) of the Act, as the Act itself makes clear.  It is a suspension in respect of which no specific period is to be imposed, but which is for the purpose of dealing with a situation on that indeterminate basis that I have described pending the final decision of the Full Court.

5. In this case, of course, as I say, that final decision has been delayed by circumstances which have been adequately canvassed in the hearing before us and to which I do not propose to refer in any detail.  The powers of the Full Court are to be found in s 30(2) of the Act and those powers include the making of an indeterminate order of suspension from practice as well as a power, in the alternative, to exercise the powers of the Disciplinary Tribunal itself under s 29A(3).  The point is that the suspension from practice which is ordered by the Tribunal pending the

decision of the Full Court may be converted by the Full Court into an order of suspension from practice which itself will not be limited by the terms of subs (3).  If that limitation is ultimately proposed, then it would be brought about by the Full Court exercising the powers of the Disciplinary Tribunal under s 29A(3).

1. In the result, the application which is now made to us in the course of the proceedings FUL 7 of 2001 is an application which would have the effect of removing the suspension from practice, pending the determination of the appeal to the Full Court, but, more importantly, pending the determination of the proceedings before the Full Court which are enlivened by the Tribunal's report.  It is effectively a stay of execution of the decision of the Tribunal which is sought in those terms and, in my opinion, the matter is to be approached against the background of the general law which applies to the grant by a court of appeal of a stay of a judgment of a court or tribunal below.

2. I am quite prepared, for myself, to take the view that the Court would have an inherent jurisdiction to make such an order but, in my opinion, it ought to do so only in circumstances which are exceptional and very highly persuasive of the need for it, in particular in circumstances which would be concerned to preserve the status quo and to prevent the proceedings in the appellate court from being rendered nugatory unless the stay was granted.

3. As can be seen from what I have said, this is not an application based in circumstances of that kind at all, but seeks to have this Court, in this summary manner, effectively prejudge and interfere with a process which may lead to the making of final orders in the Full Court at a later stage.  I would, for myself, refuse to make the order which par (b) of the application seeks and I turn to par (c) and par (d) which I think can be dealt with together.

4. In my opinion, it would not be proper, if there is power, on which I make no decision, to make an order for discovery of this kind.  It would seem to me that that is a matter which would have to wait and be dealt with in the course of particular procedural powers, and the matter is not to be approached in the way in which the applicant seeks to do by par (c) and par (d) of the motion.  I would dismiss the motion before the Court.

5. MILLER J:  I agree for the reasons which have been advanced by Murray J.  I would only add this:  That the Court should, in my view, be slow to make an order staying an order of the Legal Practitioners

Disciplinary Tribunal suspending a practitioner from practice pending an application to the Full Court to strike off the roll that practitioner.  Further, the application for the stay in this case is almost two years since decision of the Tribunal, a factor which, in my view, is very relevant to any determination as to whether or not a stay should be granted.

1. Further, we have been informed that the Full Court is itself deciding whether there should be an extension of time granted to the applicant within which to enter the appeal for hearing.  That, in my view, is a further reason why it would be inappropriate for this Court to order a stay of the orders made within the tribunal.  I, too, would therefore dismiss the application and all of the orders which are sought in par (a) to par (d) inclusive.

2. ROLFE AJ:  I agree with the reasons and orders proposed by Murray and Miller JJ.