Conflict applications to restrain opposing solicitors from acting not interlocutory

In Legal Practice Board v Lashanky [2008] WASC 294, the Supreme Court of Western Australia’s Justice Chambers said that applications to restrain solicitors from acting are not interlocutory applications, so that affidavit evidence may not be given from information and belief (i.e. the hearsay prohibition is not relaxed as it is for interlocutory applications):

’29    Under O 37 r 6(2) of the Rules of the Supreme Court 1971 (WA), an affidavit used for the purposes of interlocutory proceedings may contain statements of information and belief. However, an application to restrain a solicitor from acting is not an interlocutory proceeding.

30    In Michael v Freehill Hollingdale & Page (1990) 3 WAR 223, the Full Court heard an appeal from a master who had dismissed an application by the appellant that the respondent’s solicitors should indemnify him in respect of costs he had been ordered to pay to another party. The solicitors sought to strike out or stay the appeal as incompetent, on the basis that the master’s order was interlocutory and that the appellant had not sought leave to appeal under s 60 of the Supreme Court Act 1935 (WA).

31    Seaman J, with whom Franklyn J agreed, held:

In my view this was an application to the court to exercise disciplinary control in a summary way over officers of the court. This is a grave matter and its outcome has all the hallmarks of finality, involving, as it must, an allegation of misconduct. I am of the opinion that the learned Master’s order was a final order (234).’

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