Legal Practice Board v Lashansky [No 2] - [2009] WASC 78

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LEGAL PRACTICE BOARD -v- LASHANSKY [No 2] [2009] WASC 78

CORAM: TEMPLEMAN J

HEARD: 16 MARCH 2009

DELIVERED : 30 MARCH 2009

FILE NO/S: LPD 3 of 2000

BETWEEN: LEGAL PRACTICE BOARD
Applicant
AND
ROBERT JAMES LASHANSKY
Respondent

Catchwords:

Practice and procedure - Crossundertaking in damages - Legal Practice Board removes files from solicitor's premises pursuant to orders obtained ex parte - Orders subsequently discharged with liberty to apply - Whether crossundertaking can be required retrospectively using the liberty to apply - Scope of orders granting liberty to apply

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Mr R J Davies QC & Mr M G M Porter
Respondent: In person

Solicitors:

Applicant: Minter Ellison
Respondent: In person

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

Abigroup Ltd v Abignano (1992) 112 ALR 497
Australian Hardboards Ltd v Hudson Investment Group Ltd [2007] NSWCA 104
Cameron v Renouf [2008] WASC 60
Mansfield v Director of Public Prosecutions for Western Australia (2006) 226 CLR 486
National Australia Bank Ltd v Bond Brewing Holdings Ltd (1990) 169 CLR 271
National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386

TEMPLEMAN J: In a report dated 27 November 2000, the chairman of the Legal Practitioners Disciplinary Tribunal (the Tribunal) set out the Tribunal's determination of a number of references from the Legal Practitioners Complaints Committee in relation to Robert James Lashansky, the present applicant. The Tribunal proposed to make and transmit a report to the Full Court. Pending the determination of the court, the Tribunal suspended Mr Lashansky from legal practice under s 29A of the Legal Practitioners Act 1893 (WA).
On 29 November 2000, the Legal Practice Board (the Board) applied by originating motion to McKechnie J, ex parte, and without notice to Mr Lashansky, for orders freezing his trust and general office bank accounts. McKechnie J made orders in those terms on that day.
Also on that day, the Board exercised its powers under s 58D(1)(a) of the Legal Practitioners Act and appointed Peter Joseph Bogue, a certificated practitioner, to be the supervising solicitor of Mr Lashansky's practice.
On 13 December 2000, Mr Bogue and Ms Diane Howell, the Board's law complaints officer, effected a forcible entry into Mr Lashansky's premises in his absence. They removed Mr Lashansky's client files and personal papers.
On 25 May 2001, McKechnie J varied his original order so as to permit the balance of Mr Lashansky's trust account to be paid to Mr Bogue, as the supervising solicitor.
On 20 December 2001, Hasluck J made an order by consent, discharging the order made by McKechnie J and granting the parties liberty to apply.
On 20 July 2006, the High Court delivered its judgment in Mansfield v Director of Public Prosecutions for Western Australia (2006) 226 CLR 486. A majority of the court held that when this court makes a freezing order under s 43 of the Criminal Property Confiscation Act 2000

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: [2009] WASC 78
Decision Date: 30 MARCH 2009

CaseChat Overview and Summary

In the matter of Legal Practice Board versus Lashansky, the dispute centred on the authority of the Legal Practice Board to remove files from a solicitor's premises under ex parte orders and subsequently require a cross-undertaking in damages using the liberty to apply granted with the discharge of the orders. The matter was heard in the Federal Court of Australia.

The central legal issues before the court were whether the Legal Practice Board could impose a cross-undertaking in damages retrospectively and the extent of the orders granting liberty to apply. Specifically, the court had to determine whether the liberty to apply could be used to impose a cross-undertaking in damages after the initial orders had been discharged.

The court found that the Legal Practice Board's actions in removing files and seeking a cross-undertaking in damages were not supported by the scope of the orders granting liberty to apply. The court held that the liberty to apply did not extend to imposing a cross-undertaking in damages retrospectively. Furthermore, the court concluded that the Board's actions were beyond the scope of the original orders and did not have the authority to impose such conditions outside the terms of the initial orders.

The application was dismissed, and the court ruled that the Legal Practice Board could not require a cross-undertaking in damages using the liberty to apply. The decision underscores the importance of adhering to the specific terms of court orders and the limited scope of liberty to apply provisions.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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