Lazarus, Lazarus & Lazarus v Kane & Ors

Supreme Court of NSW|2017-08-23|Before: Wilson J, Ms J

Judgment

WILSON J: On 12 July 2017, the Independent Commission Against Corruption (the second defendant) and the New South Wales Director of Public Prosecutions (the third defendant) filed a Notice of Motion asking the Court to make orders pursuant the Uniform Civil Procedure Rules 2005 ("UCPR") to either dismiss the plaintiffs' amended summons filed on 27 June 2017 (r 13.4), or strike it out (r 14.28). The proceedings on that Motion were heard before me on 23 August 2017. On 24 August 2017, although reserving my reasons, I made the following orders: "1. Pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 the amended summons filed by the plaintiffs on 27 June 2017 is dismissed. 2. The plaintiffs are to pay the costs of the Motion. 3. The plaintiffs are to pay the second and third defendants' costs of the proceedings."
These are my reasons for making those orders. For ease of reference, and - without intending to be disrespectful - to distinguish between the plaintiffs where necessary, Ms Sandra Lazarus (the first plaintiff) will be referred to as P1, Ms Michelle Lazarus (the second plaintiff) will be referred to as P2, and Ms Jessica Lazarus (the third plaintiff) will be referred to as P3. The second defendant will be referred to as ICAC, and the third defendant as the DPP.

The Background to these Proceedings

The Charges Against P1

On 27 November 2014, following a defended hearing that commenced on 25 August 2014 and concluded on 22 October 2014, P1 was found guilty by Magistrate Keogh in the Local Court of 44 criminal offences. These were 16 offences contrary to the now repealed s 178BB of the Crimes Act 1900 (NSW) of obtaining money or financial advantage by false or misleading statements; and 28 offences contrary to s 300 of that Act of making or using false instruments. The matter was stood over for sentence.
All of the charges related to frauds committed upon two Sydney hospitals, the Royal Hospital for Women and the Royal North Shore Hospital, between 2008 and 2009.
At the summary hearing of the charges, the prosecution case was that P1 obtained access to hospital staff and facilities on the basis that she was a PhD student seeking to conduct trials of a device intended to diagnose various cancers. Using that access, P1 subsequently submitted fraudulent documents to claim moneys for work performed or services provided, by forging the signatures of doctors and others connected with the hospitals authorising the payments. The invoices were rendered in the names of companies of which P1 or P2 were the directors or shareholders. A large sum of money was obtained in this way for work or services never provided, with the charges of which P1 was convicted relating to over half a million dollars paid out.
The prosecution case depended upon evidence obtained after ICAC issued a number of summonses as part of Operation Charity.
In her defence, P1 asserted that the invoices were rendered for work or services genuinely carried out, and the signatures authorising payment were also genuine.
In early February 2015, P1 sought an ex parte judicial review of the Local Court proceedings against her in this Court. Button J, sitting as Duty Judge, granted P1 leave to file the summons in Court and stood the matter over until the following day. On 12 February 2015, P1 filed an amended summons in which she sought to have Magistrate Keogh disqualified, and have the matter reheard and determined by another Magistrate
On 13 April 2015, the judicial review proceedings were heard in this Court by Garling J, who on 14 April 2015 ordered that the proceedings be dismissed: Lazarus v DPP (NSW) [2015] NSWSC 426.
On 27 April 2015 P1 was sentenced by Magistrate Keogh, with an effective sentence of one year and nine months imprisonment with a non-parole period of one year and four months imposed.
Immediately upon sentence, P1 filed a notice of appeal to the District Court against conviction and sentence. The commencement of appeal proceedings had the effect of staying the sentence imposed by Magistrate Keogh, pending the hearing and determination of the appeal. In the interim, P1 was granted bail. That bail continues.
At about the same time as filing her all grounds appeal to the District Court, P1 initiated two proceedings in this Court. On 15 May 2015, she commenced an appeal under Part 5, Division 1 of the Crimes (Appeal and Review) Act 2001 (NSW), purported to be an appeal against the Local Court's orders; and, on 20 July 2015 P1 applied for judicial review of Magistrate Keogh's decision. The proceedings were heard together by RS Hulme AJ, being dismissed by his Honour on 2 December 2015: Lazarus v Director of Public Prosecutions NSW [2015] NSWSC 1776.
P1 next sought leave from the Court of Appeal to appeal the decision of Garling J from April 2015. On 16 December 2015 leave was refused: Lazarus v Director of Public Prosecutions (NSW) [2015] NSWCA 408.

The Charges Against P2

The charges against P2, being seven counts of giving false or misleading evidence contrary to s 87 of the Independent Commission Against Corruption Act 1988 (NSW) ("ICAC Act"), all relate to her conduct as a witness during a compulsory examination (on 12 July 2010) and the later public hearing (on 21 February 2011) held by ICAC relevant to Operation Charity.
The charges were heard in the Local Court before Magistrate Barnes over five days on various dates between 21 October 2013 and 8 April 2014. One of the contentions raised by P2 during the hearing was a claim that the prosecution against her had been invalidly commenced, in that the Court Attendance Notices ("CAN") which initiated proceedings had been signed by an ICAC officer (the first defendant) in the capacity of "prosecutor". That argument was not accepted in the Local Court: DPP v Lazarus (unreported decision of Magistrate Barnes in the Local Court of NSW of 23 May 2014, at p.4 - 5).
On 23 May 2014 P2 was found guilty by Magistrate Barnes of the seven charges. She was sentenced on 14 July 2014, with an overall term of 6 months imprisonment imposed, suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
P2 immediately filed an all grounds appeal to the District Court.
On 23 February 2015, P2 commenced proceedings in this Court seeking judicial review of the Local Court hearing, arguing that her conviction was invalid as the originating process, the CANs, were invalid. Garling J dismissed the proceedings on 21 August 2015: Lazarus v NSW Director of Public Prosecutions [2015] NSWSC 1116.
An application for leave to appeal filed in the Court of Appeal was also dismissed: Lazarus v NSW Director of Public Prosecutions [2016] NSWCA 47.

The Involvement of P3

As noted, P3 has not been charged with or convicted of any offence arising from Operation Charity. It would appear that her only involvement in Operation Charity is to have been adversely named during the proceedings.

District Court Proceedings

Having been convicted in the Local Court and lodged their respective appeals to the District Court, P1 and P2 both launched various proceedings in the District Court in late 2015 to early 2016, in effect seeking to have the appeal filed by each permanently stayed. Five motions were before the court for determination: seeking to have the criminal proceedings struck out or dismissed, or declarations made that evidence had been improperly obtained and was inadmissible.
The sisters argued that the Validation Act (NSW) did not apply to criminal proceedings and could not validate what had been done during the investigation into the crimes each was convicted of having committed. If Operation Charity was not retrospectively authorised, much of the evidence against P1 had been illegally obtained and may have been subject to discretionary exclusion, and the examination and hearing before which P2 gave false evidence were not valid.
On 19 August 2016 Zahra SC DCJ refused to order a stay with respect to the appeals before the District Court.
On 15 September 2016 P1 and P2 filed a summons in the Court of Appeal (which was later amended) in which they sought judicial review of the District Court proceedings. On 7 March 2017, the Court of Appeal dismissed the plaintiffs' further amended summons: Lazarus v Independent Commission Against Corruption [2017] NSWCA 37.
On 19 June 2017 P1's all grounds appeal was listed for hearing before the District Court. P1 did not appear and the matter was adjourned until the following day. When she again failed to appear on 20 June 2017, her conviction appeal was dismissed. Her appeal against the asserted severity of sentence was adjourned, and is listed for hearing on 18 September 2017.
P1 has also sought judicial review of the District Court's order dismissing her conviction appeal, by filing a summons (later amended) to the Court of Appeal. Those proceedings are pending.
P2's all grounds appeal was also listed for hearing before the District Court on 19 June 2017. She failed to appear on that day and the appeal was dismissed for want of prosecution.

The Current Proceedings

The multiplicity of proceedings outlined above provides the background to the proceedings before this Court.
The plaintiffs have, at various times, been represented by legal practitioners and self-represented before the courts. Both the first and second plaintiffs were represented by counsel in their criminal hearings in the Local Court. In the current proceedings, the plaintiffs represented themselves.
By amended summons filed on 27 June 2017, the plaintiffs name five defendants: Mr Michael Kane (an ICAC officer); ICAC; the DPP (NSW); the Local Court of NSW; and the District Court of NSW. The active contradictors are ICAC and the DPP. Mr Kane, and the Local and District Courts, filed a submitting appearance.
The plaintiffs seek a number of orders which, significantly, are said to be orders made pursuant to the Vexatious Proceedings Act 2008 (NSW). The orders sought are: "1. Pursuant to the Vexatious Proceedings Act 2008 (NSW), Supreme Court to order and declare that, the ICAC investigation titled 'Operation Charity' conducted pursuant to ICAC Act 1988 (NSW) are: 1A. an abuse of the process. 1B. conducted in a way so as to harass or annoy, and/or detriment. 1C. conducted for another wrongful purpose. 1D. conducted and pursued without reasonable ground. 2. Pursuant to the Vexatious Proceedings Act 2008 (NSW), Supreme Court to order and declare that, any and all 'Search Warrant' executed pursuant division 4 of the ICAC Act 1988 (NSW) in relation to 'Operation Charity', are: 2A. an abuse of the process. 2B. conducted in a way so as to harass or annoy, and/or detriment. 2C. conducted for another wrongful purpose. 2D. conducted and pursued without reasonable ground. 3. Pursuant to the Vexatious Proceedings Act 2008 (NSW), Supreme Court to order and declare that, any and all 'Compulsory Examinations' conducted pursuant to section 30 of the ICAC Act 1988 (NSW) in relation to 'Operation Charity' are: 3A. an abuse of the process 3B. conducted in a way so as to harass or annoy, and/or detriment. 3C. conducted for another wrongful purpose. 3D. conducted and pursued without reasonable ground. 4. Pursuant to the Vexatious Proceedings Act 2008 (NSW), Supreme Court to order and declare that, any and all 'Public Inquiry' conducted pursuant to section 31 of the ICAC Act 1988 (NSW) in relation to 'Operation Charity' 'Operation Charity' are: 4A. an abuse of the process 4B. conducted in a way so as to harass or annoy, and/or detriment. 4C. conducted for another wrongful purpose. 4D. conducted and pursued without reasonable ground. 5. Supreme Court to order and declare that, any and all reports to the Parliament pursuant to section 74 of the ICAC Act 1988 (NSW), are: 5A. an abuse of the process 5B. conducted in a way so as to harass or annoy, and/or detriment. 5C. conducted for another wrongful purpose. 5D. conducted and pursued without reasonable ground. 6. Supreme Court to order and declare that, any and all reports in relation to ICAC investigation titled 'Operation Charity' to the Parliament pursuant to section 74 of the ICAC Act 1988 (NSW) be withdrawn from Parliament and Parliamentary records, as the furnishing of the report, pursuant to the Vexatious Proceedings Act 2008 (NSW) are: 6A. an abuse of the process 6B. conducted in a way so as to harass or annoy, and/or detriment. 6C. conducted for another wrongful purpose. 6D. conducted and pursued without reasonable ground. 7. Supreme Court to order and declare that, any and all findings, recommendations, determinations, and/or other decisions of the ICAC in relation to ICAC investigation titled 'Operation Charity', which were made by the ICAC pursuant to the ICAC Act 1988 (NSW) are beyond power, nullity, and pursuant to the Vexatious Proceedings Act 2008 (NSW) are: 7A. an abuse of the process 7B. conducted in a way so as to harass or annoy, and/or detriment. 7C. conducted for another wrongful purpose. 7D. conducted and pursued without reasonable ground. 8. Supreme Court to quash, set aside, permanently stay any and all findings, recommendations, determinations, and/or other decisions of the ICAC in relation to ICAC investigation titled 'Operation Charity', which were made by the ICAC pursuant to the ICAC Act 1988 (NSW). 9. Supreme Court to order and declare that, pursuant to the Criminal Procedures Act 1986 (NSW) an Officer of the ICAC and/or the ICAC did not have the authority to commence and/or institute criminal proceedings in the Local Court, and pursuant to the Vexatious Proceedings Act 2008 (NSW) the proceedings numbered 2013/76236 and 2013/98654 are: 9A. an abuse of the process 9B. conducted in a way so as to harass or annoy, and/or detriment. 9C. conducted for another wrongful purpose. 9D. conducted and pursued without reasonable ground. 10. Supreme Court to order and declare that, Court Attendance Notices listing ICAC Officer and ICAC as prosecutor and prosecuting organisation in relation to Local Court proceedings numbered 2013/76236 and 2013/98654, pursuant to the Vexatious Proceedings Act 2008 (NSW) are: 10A. an abuse of the process 10B. conducted in a way so as to harass or annoy, and/or detriment. 10C. conducted for another wrongful purpose. 10D. conducted and pursued without reasonable ground. 11. Supreme Court to order and declare that, Court Attendance Notices for criminal proceedings numbered 2013/76236 and 2013/98654 are invalid pursuant to the Criminal Procedures Act 1986 (NSW), and are invalid pursuant to the Vexatious Proceedings Act 2008 (NSW) as they are: 11A. an abuse of the process 11B. conducted in a way so as to harass or annoy, and/or detriment. 11C. conducted for another wrongful purpose. 11D. conducted and pursued without reasonable ground. 12. Supreme Court to order and declare that, upon their proper construction, cll 34 and 35 of Sch 4 of the ICAC Act 1988 (NSW) do not operate to validate anything done or purporting to have been done in connection with the criminal proceedings in the Local Court proceedings numbered 2013/76236 and 2013/98654, and pursuant to the Vexatious Proceedings Act 2008 (NSW) are: 12A. an abuse of the process 12B. conducted in a way so as to harass or annoy, and/or detriment. 12C. conducted for another wrongful purpose. 12D. conducted and pursued without reasonable ground. 13. Supreme Court to order and declare that, to the extent that, upon their proper construction, cll 34 and 35 of Sch 4 to the ICAC Act 1988 (NSW) purport to validate anything done or purporting to have been done in connection with the criminal proceedings in the Local Court numbered 2013/76236 and 2013/98654 to that extent, the clauses are constitutionally invalid, and pursuant to the Vexatious Proceedings Act 2008 (NSW) are: 13A. an abuse of the process 13B. conducted in a way so as to harass or annoy, and/or detriment. 13C. conducted for another wrongful purpose. 13D. conducted and pursued without reasonable ground. 14. Supreme Court to order and declare that, to the extent that, upon their proper construction, cll 34 and 35 of Sch 4 to the ICAC Act 1988 (NSW) purport to validate anything done or purporting to have been done in connection with the criminal proceedings in the Local Court numbered 2013/76236 and 2013/98654 to that extent, they are not applicable to current court proceedings, and pursuant to the Vexatious Proceedings Act 2008 (NSW) are: 14A. an abuse of the process 14B. conducted in a way so as to harass or annoy, and/or detriment. 14C. conducted for another wrongful purpose. 14D. conducted and pursued without reasonable ground. 15. Pursuant to the Vexatious Proceedings Act 2008 (NSW), Supreme Court to order and declare that, the conduct / behaviour / actions / involvement of the Office of Director of Public Prosecution New South Wales during the proceedings numbered 2013/76236 and 2013/98654 is: 15A. an abuse of the process 15B. conducted in a way so as to harass or annoy, and/or detriment. 15C. conducted for another wrongful purpose. 15D. conducted and pursued without reasonable ground. 16. Supreme Court to order and declare that, the Office of Director of Public Prosecution New South Wales, in facilitating an invalid commenced/instituted Local Court proceedings numbered 2013/76236 and 2013/98654, pursuant to the Vexatious Proceedings Act 2008 (NSW), and pursuant to the Director of Public Prosecution Act 1986 (NSW) is: 16A. an abuse of the process 16B. conducted in a way so as to harass or annoy, and/or detriment. 16C. conducted for another wrongful purpose. 16D. conducted and pursued without reasonable ground. 17. Supreme Court to order and declare that, the Local Court proceedings numbered 2013/76236 and 2013/98654 pursuant to the Vexatious Proceedings Act 2008 (NSW) are: 17A. an abuse of the process 17B. conducted in a way so as to harass or annoy, and/or detriment. 17C. conducted for another wrongful purpose. 17D. conducted and pursued without reasonable ground. 18. [Not pressed] 19. [Not pressed] 20 [Not pressed] 21 The first, second and third Defendants, are to pay the three Plaintiffs' costs in the ICAC investigation titled 'Operation Charity'. 22 The first, second and third Defendants, are to pay the first and second Plaintiffs' costs in the Local Court proceedings. 23 The first, second and third Defendants, are to pay the first and second Plaintiffs' costs in the District Court proceedings and Court of Appeal proceedings in relation to the District Court proceedings. 24 The first, second and third Defendants, are to pay the three Plaintiffs' costs in these court proceedings."
By Notice of Motion filed on 12 July 2017 ICAC and the DPP jointly ask the Court to dismiss or strike out the plaintiffs' Amended Summons, and award costs against the plaintiffs both of the Motion, and the proceedings, in their favour.
The second and third defendants argue that the plaintiffs' claim is obviously untenable and an abuse of process or, alternatively, no grounds are pleaded and no reasonable cause of action is disclosed. It is submitted that the Amended Summons should be summarily dismissed as an abuse of process, or struck out as failing to disclose a reasonable cause of action.

The Law

There is no issue that the Court has the power to set aside originating process, the statutory power being found in Part 13 of Division 4 of the UCPR.
Rule 13.4 of the UCPR provides for summary dismissal: "13.4 Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)."
Further, a pleading may be struck out, pursuant to the power provided by rule 14.28 of the UCPR: "14.28 Circumstances in which court may strike out pleadings (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)."
There is no doubt about the principles to be applied when summary dismissal or strike out is sought. The power is to be exercised sparingly and only in clear cases where no tenable claim exists. For summary dismissal or strike out to be appropriate, the plaintiffs' claim must, in effect, be manifestly groundless. When referring to the authorities on the subject, Barwick CJ said, in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129: "[…] these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'."

The Plaintiffs' Claim

As can be seen from the detail of the Amended Summons set out at [34] above, the plaintiffs ask the Court to order and declare that various aspects of Operation Charity or the operation of ICAC were, in essence, vexatious proceedings. Prayers 1 - 4, 6 - 7, and 9 - 17 all seek orders pursuant to the Vexatious Proceedings Act 2008 (NSW) ("the VP Act"). Prayer 5, whilst not referring to the VP Act, appears to adopt the definition of "vexatious proceedings" provided by s 6 of that Act in seeking a declaration that reports of the ICAC furnished by it to Parliament pursuant to s 74 of the ICAC Act are an abuse of process, conducted wrongfully, without reasonable grounds, or to harass.
Prayer 8 is the only prayer seeking relief of a different nature (an order setting aside the findings of ICAC following Operation Charity).
As the second and third defendants observed, the Amended Summons contained no grounds which could have identified the proceedings said to be vexatious or the basis upon which such proceedings might be concluded to be vexatious.
In oral submissions to the Court on 23 August 2017 (the plaintiffs having failed to file and serve any written submissions in accordance with the earlier directions of the Court) the plaintiffs referred to affidavit evidence filed in support of the Amended Summons to elucidate the grounds relied upon. (This material was received over objection and on the basis that the affidavits were more properly characterised as submissions, rather than evidence, much of the contents being inadmissible for various reasons.)
Of the three affidavits referred to, the affidavits of Sandra Lazarus of 9 July 2017 and 31 July 2017 either provide copies of submissions made to other courts on other occasions, or produce material relevant to the health of the plaintiffs, and is not further referred to here. Suffice to say the material was read and considered.
The plaintiffs principally relied on the third of the affidavits read. In paragraphs 6 to 11 of what purported to be the joint affidavit of both P1 and P2 affirmed on 26 June 2017, the plaintiffs referred to the functions of ICAC, and the consequences of the decision in Independent Commission Against Corruption v Cuneen to assert that Operation Charity was beyond the jurisdiction of ICAC to investigate.
It was submitted that, in addition to being outside the [then] proper scope of its functions, Operation Charity was instituted for an improper or wrongful purpose. The plaintiffs relied upon paragraphs 15 - 18, 40 - 55, and 66 - 98 of the same affidavit in support of that contention, those being paragraphs which referred back to similar submissions of bad faith put during the course of the Local Court prosecution of P2. What was there advanced was that: 1. although ICAC was the true prosecutor relevant to the matters involving P1 and P2, an officer of ICAC and could not be a prosecutor, thus rendering the prosecution invalid; 2. that the questioning of P2 by ICAC was improper, and would not have been permitted in a court; 3. that document examination evidence adduced by P1 at her summary hearing should have been accepted; and 4. that the real reason for the conduct of Operation Charity and the subsequent prosecutions of P1 and P2 was to force them to sign a document releasing hospital staff from any legal action P1 or P2 might otherwise have taken against them, and to recover the monies paid out to P1 and P2.
Although the VP Act would not appear to have any bearing on the operations of the ICAC, or the matters raised by the plaintiffs to supply the place of the absent grounds, P1 put the argument this way: "So basically in summary we are saying if a judicial review can review the conduct of the ICAC, then the vexatious proceedings within the Vexatious Proceedings Act can also review the conduct of the ICAC investigations within this Court as well" (at T39:43 - 46 of 23 August 2017).

Consideration

In Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 Dixon J (as he then was) summed up a number of authorities on the question of summary dismissal, and said (at 91) "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury."
This is one such case.
Not only is the pleading sufficiently inadequate as to fail to disclose any reasonable cause of action, but it also constitutes an abuse, in that it asks for relief which is either wholly inapposite, or which has already been refused by another court, or both.

Prayers 1 - 7 and 9 - 17

Each of these prayers for relief seeks an order or declaration "pursuant to the Vexatious Proceedings Act" on the basis that the action or thing referred to is: "a. An abuse of process. b. Conducted in a way so as to harass or annoy, and/or detriment. c. Conducted for another wrongful purpose. d. Conducted and pursued without reasonable ground."
The phrases used at sub-prayers (a) to (d) in each case are drawn directly from s 6 of the VP Act, which provides: "6 Meaning of "vexatious proceedings" In this Act, vexatious proceedings includes: (a) proceedings that are an abuse of the process of a court or tribunal, and (b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and (c) proceedings instituted or pursued without reasonable ground, and (d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose."
The actions or things with respect to which orders or declarations are sought vary, but share one common feature, that being that none of them could be concluded to be "proceedings" for the purpose of the application of the VP Act.
Prayers 1 to 4 all refer to aspects of the conduct of Operation Charity, being either the whole of the investigation known by that name, search warrants issued during its currency, or compulsory examinations or the public hearing into the matter. Prayers 5 and 6 refer to reports produced by ICAC pursuant to s 74 of the ICAC Act, either in relation to Operation Charity or generally. Prayer 7 refers to the findings and decisions of ICAC relevant to Operation Charity, whilst prayers 9, 10, 11, and 17 refer to matters connected with the commencement and conduct of Local Court criminal proceedings. Prayers 12 to 14 refer to the application of the Validation Act to the plaintiffs' criminal matters, whilst prayers 15 and 16 refer to the conduct of the Office of the Director of Public Prosecutions.
Section 4 of the VP Act provides, "4 Meaning of "proceedings" In this Act, proceedings includes: (a) any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and (b) any proceedings (including any interlocutory proceedings) taken in connection with or incidental to proceedings pending before a court or tribunal, and (c) any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way."
Although that definition is a wide one, it clearly refers only to litigation before a court or tribunal. It does not extend to the operation of an investigatory body such as ICAC, or to a prosecutorial authority such as the Office of the Director of Public Prosecutions ("ODPP"), or to decisions taken by either.
The conduct of an investigation, the issue of search warrants, the conduct of investigatory hearings before a Commission of inquiry, the issue of reports by such a body or the making of decisions by it cannot be "proceedings" within the meaning of s 4 of the VP Act. Nor can matters connected with the validity and application of legislation of itself be "proceedings".
Whilst the ODPP is or can be a party to proceedings meeting the s 4 definition, the conduct and actions of the Office itself are not "proceedings".
Prayers 1 to 7, and 9 to 16 all seek relief of a type which is simply not available, and are thus wholly misconceived. Nothing referred to in those parts of the Amended Summons is capable of being "proceedings" which the Court could declare vexatious, even if some legitimate basis for such a declaration had been established or even advanced.
Even could such a declaration be made, it is meaningless in and of itself, since the VP Act is not intended to provide declaratory relief as such; rather it provides a mechanism by which to declare individual persons "vexatious" and thereby restrain future litigation by such persons. The ICAC or the ODPP (or the Local and District Courts) are not "persons" whose past conduct can be the subject of a declaration or finding, or whose future conduct can be regulated pursuant to s 8 of the Act, which provides: "8 Making of vexatious proceedings order (1) When orders may be made An authorised court may make an order under this section (a vexatious proceedings order) in relation to a person if the court is satisfied that: (a) the person has frequently instituted or conducted vexatious proceedings in Australia, or (b) the person, acting in concert with a person who is subject to a vexatious proceedings order or who is referred to in paragraph (a), has instituted or conducted vexatious proceedings in Australia. (2) […]."
Since the section has no application to investigative or prosecutorial bodies, it is sufficient to note that no evidence was placed before the Court that could establish the matters referred to in s 8(1)(a).
Prayers 1 to 7 and 9 to 16 then are both misconceived and disclose no reasonable cause of action.
Only prayer 17 seeks relief with respect to an action which could be a "proceeding", that being (finalised) prosecutions before the Local Court, but the other problems remain: the VP Act provides a mechanism to restrain vexatious litigants, rather than to declare individual actions vexatious as an end in itself; and there is, in any event, no grounds advanced as to the basis for such a declaration, nor evidence adduced in support of it.
There are other issues relevant to these prayers.
Prayer 6 asks the Court to order that the report to Parliament provided by ICAC concerning Operation Charity be withdrawn "pursuant to" the VP Act, in circumstances where that Act provides no power for the Court to make such an order.
Many of the issues raised by other individual prayers have all been considered and determined by this Court or the Court of Appeal on earlier occasions, or are pending for determination by the Court of Appeal. The relief sought thus seeks to go behind and relitigate matters already heard by a court or to be heard, and is an abuse of process.
Prayer 7 asks this Court to grant relief which would ignore the decision of the High Court in Duncan v Independent Commission Against Corruption (2015) 256 CLR 83 in which the validity of the Validation Act was upheld; and which would be contrary to the conclusions of the Court of Appeal in Lazarus v Independent Commissioner Against Corruption [2017] NSWCA 37, wherein it was concluded that the Validation Act applies to pending criminal proceedings (as those against P1 and P2 were at the material time), and applies to the prosecution of P1 and P2, and to their subsequent appeals.
The operation of Clauses 34 and 35 of Schedule 4 to the ICAC Act means that prayer 7 (and prayer 8) could never succeed.
Prayers 9 to 11 seek to relitigate questions concerning the authority of an officer of ICAC to issue a Court Attendance Notice, and the validity of the prosecutions of P1 and P2 as a consequence. These issues with respect to P2, however, were determined by Garling J in Lazarus v New South Wales Director of Public Prosecutions [2015] NSWSC 1116, leave to appeal to the Court of Appeal against that decision having been refused: Lazarus v New South Wales Director of Public Prosecutions [2016] NSWCA 47.
Since the legal questions are the same, there is no basis upon which to conclude that the position of P1 would be any different from that of P2.
The validity of the Court Attendance Notices and the prosecutions was also considered in Lazarus v Independent Commissioner Against Corruption [2017] NSWCA 37, with the arguments advanced by P1 and P2 being rejected.
That decision also considered the operation of clauses 34 and 35 of Schedule 4 to the ICAC Act adversely to the plaintiffs, this being the issue raised by prayers 12 to 14.
The doctrine of res judicata applies between the parties with respect to these prayers.

Prayer 8

This prayer does not seek orders pursuant to the VP Act, but it must fail nevertheless, as an abuse of process. The relief sought is a permanent stay of (or to quash or set aside) the findings or decisions of ICAC in Operation Charity. Although no grounds are particularised, it is evident from the affidavit material that the plaintiffs contend that the Validation Act and clauses 34 and 35 of Schedule 4 of the ICAC Act do not operate in such a way as to validate Operation Charity.
As noted with respect to prayer 7, the construction and application of the Validation Act is one of the issues considered and determined by the Court of Appeal in Lazarus v Independent Commission Against Corruption [2017] NSWCA 37. Leeming JA, with whom McColl JA and Simpson JA agreed, concluded (at [136] - [138]): "[…] there is no suggestion in any of the materials in this Court that any person believed at the time that the questioning was not authorised. Further, it is plain that the State at all times had legislative power to empower ICAC to conduct Operation Charity. It turned out in 2015 that the ICAC Act had a narrower operation than had been perceived, such that Operation Charity was not authorised. There is nothing antithetical to the judicial process for a law to be enacted in 2015, altering the legal character of what occurred in 2010 and 2011 to a position, consistent with what was understood at the time, even though that law has an impact upon a prosecution commenced in 2013 in respect of which the appeal rights have not been exhausted. Thirdly, the foregoing accords with what has been held as to the operation of the Validation Act. The Validation Act 'does no more than attribute the consequences of legal validity to things done by [ICAC]': Duncan at [15]. It 'attach[es] new legal consequences and a new legal status to things done which otherwise would not have had such legal consequences or status': Duncan at [25]. The Act is not directed to legal proceedings, let alone targeted to a particular person or small class of persons. It operates at a stage prior to the commencement of criminal proceedings. For those reasons, I would reject this aspect of the summons. That extends to dismissing the application for declaratory relief in respect of the findings, statement and conduct of ICAC. I did not understand the applicants to advance any separate case in that respect. The breadth of the language in the Validation Act extends to all of the things sought to be the subject to declaratory relief as amended."
These matters cannot be relitigated in this Court in hopes of achieving a different result. The declaration sought represents an abuse of process.
There is a final question of the standing of P3 with respect to all but prayers 5 to 7, but this matter need not be further considered having regard to my conclusions above, other than to observe that P3 does not appear to have the necessary standing to seek the relief sought in the remaining prayers.

Prayers 21 to 24

These prayers are all concerned with costs orders, and in light of my conclusions, need not be further considered.

Conclusion

I am mindful of the principles that govern the exercise of the power to summarily terminate an action before the Court, and the caution with which such an application must be approached.
I am also mindful of the fact that the plaintiffs have not been assisted by any legally qualified person in drafting their Amended Summons, and they should not be prevented from seeking access to a determination of the Court because of infelicities of drafting. However, this is not a case in which the pleading could be amended such that it should be permitted to proceed to full adjudication.
I have reached the firm conclusion that, consistent with the principles that apply to applications such as that brought by the second and third defendants, the Court should intervene at this early stage of proceedings to prevent the matter going further. In my opinion, the plaintiffs' claim is "manifestly groundless", "obviously untenable" "manifestly faulty" and "cannot succeed". To allow it to proceed would not just "involve useless expense", it would, with respect to much of the relief sought, permit the processes of the Court to be abused.
The proper course is to dismiss the plaintiffs' action pursuant to r 13.4 of the UCPR.

Costs

The second and third defendants sought costs against the plaintiffs in the event the Amended Summons was dismissed or struck out. Although the plaintiffs opposed any order for costs, in circumstances where the plaintiffs' claim represents an abuse of process that was doomed to fail, costs should be awarded as the second and third defendants ask. Orders 2 and 3 of 24 August 2017 were thus made.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 April 2018

Independent Commission Against Corruption Amendment (Validation) Act 2015(NSW)

Criminal Procedures Act 1986(NSW)

Director of Public Prosecution Act 1986(NSW)

At a glance

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Judgment (16 paragraphs)

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Legislation Cited (9)

Cases Cited (11)

Cited By (2)