Lazarus and Ors v Independent Commission Against Corruption and Anor; Lazarus v State of New South Wales and Ors [2018] NSWSC 138 (12 February 2018)

Last Updated: 21 February 2018

Supreme Court New South Wales

Case Name:	Lazarus and Ors v Independent Commission Against Corruption and Anor; Lazarus v State of New South Wales and Ors
Medium Neutral Citation:	[2018] NSWSC 138
Hearing Date(s):	12 February 2018
Date of Orders:	12 February 2018
Decision Date:	12 February 2018
Jurisdiction:	Common Law
Before:	Johnson J
Decision:	1. Plaintiffs’ Notice of Motion in each proceedings dismissed. 2. Plaintiffs to pay the costs of the Defendant with respect to each Notice of Motion.
Catchwords:	CIVIL PROCEDURE - application by Plaintiffs to vacate hearing of summary dismissal applications brought by Defendants - reliance upon filing of application to remove other proceedings into High Court of Australia - hearing of summary dismissal application adjourned previously to meet convenience of Plaintiffs’ counsel and solicitor - no proper basis to vacate hearing of summary dismissal applications - application dismissed with costs
Legislation Cited:	Civil Procedure Act 2005 Independent Commission Against Corruption Act 1988 Judiciary Act 1903 (Cth)
Cases Cited:	---
Texts Cited:	---
Category:	Procedural and other rulings
Parties:	2017/232535 Jessica Lazarus, Michelle Lazarus, Sandra Lazarus (Plaintiffs) Independent Commission Against Corruption (First Defendant) Michael Kane (Second Defendant) 2017/247213 Sandra Lazarus (Plaintiff) State of New South Wales (First Defendant) Local Court of New South Wales (Second Defendant) Joanna Keogh (Third Defendant)
Representation:	Counsel: Ms S Lazarus and Ms M Lazarus in person (Plaintiffs in 2017/232535) Ms S Lazarus in person (Plaintiff in 2017/247213) Ms J Davidson (First Defendant in both proceedings) Solicitors: Crown Solicitor’s Office (First Defendant in both proceedings)
File Number(s):	2017/232535 - Lazarus and Ors v Independent Commission Against Corruption and Anor 2017/247213 - Lazarus v State of New South Wales and Ors
Publication Restriction:	---

JUDGMENT

1. JOHNSON J: Before the Court are two Notices of Motion which have come before me urgently as Duty Judge. In proceedings 2017/232535, Sandra Lazarus and Others v Independent Commission Against Corruption and Anor (which I will describe as ICAC proceedings), application is made, in effect, to vacate the hearing date fixed for later this week of an application by the Independent Commission Against Corruption (“ICAC”) to strike out or summarily dismiss the proceedings brought by the Plaintiffs.
2. In addition, there is a Notice of Motion in proceedings 2017/247213 Sandra Lazarus v State of New South Wales and Others (which I will describe as the State of New South Wales proceedings) to vacate the hearing date fixed for later this week of an application by the State of New South Wales to strike out or summarily dismiss the Plaintiff's claim.
3. In support of these applications brought urgently before me today, the Plaintiffs have read the affidavits of Sandra Lazarus dated 9 February 2018 in each proceeding and the relevant Defendants have relied upon the affidavits of Christopher Frommer dated 12 February 2018 in each proceeding.
4. I note that the hearings are listed to proceed on 15 and 16 February 2018 before Walton J.
5. Some recounting of the background to this litigation is required.
6. The State of New South Wales proceedings were commenced by the filing of a Statement of Claim on 14 August 2017. The ICAC proceedings were commenced by the filing of a Statement of Claim on 31 July 2017.
7. The relevant Defendants filed a Notice of Motion in each proceeding seeking the striking out or summary dismissal of the proceedings on 31 August 2017 and 15 September 2017. The hearing of the Notice of Motion in the ICAC proceedings was listed to take place on 10 November 2017.
8. The matter was restored to the List before Registrar Bradford on 12 October 2017 at the request of the Plaintiffs. Ms Leigh Johnson, solicitor, appearing for the Plaintiffs, sought an adjournment of the 10 November 2017 hearing. The Registrar was told, as was McCallum J to whom the matter was referred as Duty Judge, that neither Ms Johnson as solicitor nor Mr Charles Waterstreet as counsel could appear if the 10 November 2017 hearing was retained.
9. McCallum J determined to vacate that hearing date and both the ICAC proceedings and the State of New South Wales proceedings, which by that stage were linked, came back before the Registrar who made a number of orders on 12 October 2017.
10. The Registrar was informed that 15 and 16 February 2018 were dates suitable to Ms Davidson, counsel for the Defendants, and to Ms Leigh Johnson and to Mr Waterstreet. Accordingly, orders were made listing the Defendants’ Notices of Motion for hearing on those days and consequential orders were made.
11. The Defendants filed and served written submissions with respect to the Notices of Motion on 11 December 2017. The timetable in each proceedings provided for the Plaintiffs to file and serve written submissions in reply by 26 January 2018. To date, no written submissions have been provided on behalf of the Plaintiffs with respect to the Notices of Motion concerning the matters listed for hearing later this week.
12. On 25 January 2018, a removal application was filed in the High Court of Australia (No S26/2018) between Sandra Lazarus and Michelle Lazarus as applicants and Michael Kane and other parties as respondents. The application sought removal under s.40 Judiciary Act 1903 (Cth) of part of the cause pending before the New South Wales Court of Appeal which is proceeding number 2017/213601 entitled Lazarus v Kane and Others. The removal application recites (Part 1, paragraph 7) that amongst the orders sought are the remitter of certain District Court proceedings if that litigation was successful.
13. Based upon the filing of the removal application in the High Court of Australia on 25 January 2018, the Plaintiffs seek to have vacated the hearings of the Notices of Motion listed for later this week.
14. Today, Ms Sandra Lazarus and Ms Michelle Lazarus have appeared without legal representation. The Court was informed that Ms Leigh Johnson has health difficulties and has not appeared today. I note that it appears that Ms Johnson has drafted the relevant documents which are relied upon for the purpose of today. Mr Waterstreet has not appeared today either.
15. When the matter first came before me earlier in the day, I stood the proceedings down until 2.00 pm and Ms Davidson, counsel for the Defendants, has appeared. Submissions have been made opposing the application to vacate the hearings listed for later this week. In that respect, it was submitted for the Defendants that there is a difference between the proceedings which are the subject of the removal application and the proceedings listed for hearing later this week. Indeed, as I have said, the removal application does not seek the removal of the very proceedings listed for hearing later this week.
16. The Court heard detailed submissions which contrasted the proceedings later this week with those which are the subject of the removal application and which are in the Court of Appeal. For the purpose of this interlocutory application, it is not necessary to recite, in any detail, the areas of difference. It is sufficient to observe that the proceedings before the Court of Appeal are judicial review proceedings which touch upon a number of issues. It is notable, as well, that the relief sought in the High Court of Australia, as part of the removal application, is that the New South Wales Parliament be required to amend various provisions in the Independent Commission Against Corruption Act 1988, including various provisions which have been inserted since the events which affect the Plaintiffs.
17. The litigation which is to be considered further later this week, if the hearings are not vacated, involves the following issues. The State of New South Wales proceedings involve a claim by Ms Sandra Lazarus for damages in an amount of $287 million with prayers for relief in the Statement of Claim including orders for counselling and training of a Local Court Magistrate and removal of that Magistrate from the exercise of judicial functions and damages and civil penalties upon a number of different bases which are said to found an entitlement to damages in the sum I have mentioned.
18. The ICAC proceedings involve claims by three Plaintiffs, each in the sum of $247 million so that there is a total of $741 million sought. The relief sought by those Plaintiffs seeks, amongst other things, removal of reports of and references to what is described as Operation Charity (which I take to be the reports of the ICAC with respect to that operation) and also damages and civil penalties upon a number of bases which are said to give rise to an entitlement to compensation and damages in various ways.
19. Although it may be said that, in an entirely broad-brush way, the activities of the ICAC may have something to do with the two sets of proceedings listed for hearing later this week and the Court of Appeal proceedings which are the subject of the High Court removal application, there is no application for removal of these specific proceedings. Nor can it be said, in my view, that there is sufficient overlap to say that these proceedings are caught up in the removal application.
20. Beyond that a number of observations may be made.
21. These proceedings have been before this Court for some months. An earlier hearing of one of the sets of proceedings was vacated by an order of a Judge of this Court and what was then proposed, with the agreement of a solicitor and counsel on both sides of the record, was the fixing of dates on 15 and 16 February 2018 for the hearing of these Notices of Motion. The Defendants have filed the evidentiary material upon which they seek to rely and written submissions have been served and filed and have been in the hands of the Plaintiffs' legal representatives for two months. The legal representatives for the Plaintiffs have not complied with orders of the Court with respect to the filing of submissions.
22. What appears to have happened is that on 25 January 2018, the High Court removal application was filed. If it be the case that a view was taken that the filing of that application would in some way mean that the legal representatives for the Plaintiffs did not have to comply with orders of this Court, then that would be a misunderstanding of the position, to say the least.
23. The Civil Procedure Act 2005 casts obligations upon litigants and their legal representatives. Section 56 of that Act requires, as an overriding purpose of civil litigation, that the parties seek to achieve the just, quick and cheap resolution of the real issues in the proceedings. In this case, the issues to be litigated are the applications brought by the Defendants, which have been ready for hearing now for two months, and the Plaintiffs have been on notice of both the evidence and the arguments to be relied upon.
24. I do not consider that the filing of the High Court removal application on 25 January 2018 constitutes an impediment to the Court going ahead with these hearings later in the week.
25. It was argued by Ms Michelle Lazarus that this may mean that a hearing takes place which may come to nothing and have to be repeated at a later time because of the potential success of litigation in the High Court of Australia.
26. I am simply not persuaded that that argument has any traction in the present context. The matters listed for hearing later this week are clearly identified. The High Court application has been filed. It has no return date. It does not bear directly on the present litigation and the indirect link with this litigation does not, in my view, operate beyond the fact that in a broad brush way the ICAC is said to be involved.
27. The obligation of the Court under s.56 Civil Procedure Act 2005 looms very large, in my view. I am simply not persuaded that the hearing of the Notices of Motion listed for later this week should be vacated.
28. In each case, I dismiss the Notice of Motion.

[Submissions were made as to costs]

29. These proceedings were brought before the Court as a matter of urgency today with Ms Sandra Lazarus and Ms Michelle Lazarus appearing. The Notices of Motion were pressed and argued and I have heard and determined the Notices of Motion and dismissed them. I see no reason why the usual rule should not apply and that costs should follow the event.
30. Accordingly, I order that the Plaintiffs pay the costs of the Defendants with respect to each Notice of Motion.
31. I note that the matters stand listed for hearing before Walton J this Thursday and Friday.

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