HER HONOUR: The plaintiff, Michelle Lazarus, moves on a notice of motion seeking an extension of time in which to file affidavits and written submissions in support of her originating process, and of a vacation of the hearing date of that originating process. The first defendant in the proceedings is the New South Wales Director of Public Prosecutions, the second defendant, who files a submitting appearance, is the Local Court of New South Wales.
The originating summons was filed by the plaintiff on 23 February 2015, with an amended summons filed on 23 March 2015. The summons seeks orders striking out the judgment of the Local Court, a judgment against the plaintiff in which the plaintiff was convicted on 11 July 2014 of an offence contrary to s 87 of the Independent Commission Against Corruption Act 1988. Section 87 of that Act creates an offence of Knowingly Giving False or Misleading Evidence before the Independent Commission Against Corruption and specifies a maximum penalty of 200 penalty units, for a maximum period of five years imprisonment, or both.
The plaintiff has appealed against her conviction and sentence to the District Court and proceedings are on foot in that jurisdiction. The matter is next listed before the District Court on 15 May 2015 on which date it is anticipated that a date will be fixed for the hearing of the appeal. One such date for hearing of Ms Lazarus' appeal to the District Court, in February of this year, has already been vacated on the application of Ms Lazarus.
In this Court the plaintiff seeks orders setting aside the judgment of the Local Court with respect to the section 87 offence and, on the basis that such an order setting aside the conviction were made, she further seeks orders that the s 87 prosecution be heard and determined in this Court according to law.
Currently, proceedings in this Court are listed for hearing on 16 and 17 June 2015 with a two day estimate. The plaintiff is required to file and serve affidavits in support of the summons together with written submissions by 6 May 2015. The first defendant is to file its written material thereafter.
The plaintiff, by her notice of motion, seeks to have that date of 6 May vacated, together with the vacation of the hearing date, with a later alternative hearing date listed. In support of her application the plaintiff reads and relies upon her affidavit of 22 April 2015. That affidavit annexes a one page document, being a letter under the hand of the plaintiff's treating psychiatrist, Dr Michelle Smith.
In her affidavit the plaintiff deposes that she has a major depressive disorder and she refers in that regard to the annexure from Dr Smith. The plaintiff deposes that as a result of the major depressive disorder from which she suffers, compounded by the effect of the medication which she is prescribed, she suffers from an inability to concentrate on tasks with any such task taking her longer to complete than would ordinarily be the case.
The plaintiff deposes that because of her major depressive disorder and the effect of the medication, she requires an extension of time in which to complete and file the documents required for the hearing of her matter, and further time in which to prepare it such that she would not be able to ready her case for the current hearing date of 16 and 17 June.
The annexure to the plaintiff's affidavit, Dr Smith's letter of 21 April 2015, provides very little information beyond that which is contained in the plaintiff's affidavit. Dr Smith's letter, which is directed, "To Whom It May Concern" sets out the history of the plaintiff's care. Dr Smith indicates that the plaintiff has been under her care since 8 November 2011, at which time she was suffering from a major depressive disorder. The doctor opines that those symptoms have been chronic, apparently dating back to onset in 2009, such onset appearing to be connected to investigations relevant to the ICAC prosecution.
Dr Smith indicates that her patient was commenced on Sertraline at a dosage of 50 milligrams each day. She was further prescribed Quetiapine, known more generally as Seroquel, at a dosage of 12.5 milligrams, apparently daily, although the doctor does not explicitly state that. Dr Smith says that this medication is necessary to assist with excessive agitation and anxiety.
The doctor comments that due to ongoing investigations and legal proceedings Ms Lazarus has failed to have any significant improvement in her mental state. The purport of the doctor's letter seems to be to provide some support for a claim that Ms Lazarus is someone who should have support with her in the court room. The doctor says, "I would support Ms Lazarus having someone present with her in Court as support. This will assist in minimising the stressors imposed on Ms Lazarus during Court proceedings when she is representing herself". That, together with the information as to diagnosis and medication, is the whole of the material contained in Dr Smith's letter.
There is no information from Dr Smith as to the impact of Ms Lazarus's condition upon her cognitive function or upon her capacity to prepare and make her case. The plaintiff submits that her condition is a serious one, and it has the effect of hindering her in the preparation of her case before this Court. She says, although there is no evidence of it, that recent family events have made her condition worse. Although these events are said to have occurred some two to three weeks ago, Dr Smith makes no mention of them in her letter of 21 April 2015 or, indeed, of any deterioration of the plaintiff's medical condition in the last few weeks. Accordingly there is nothing before the Court other than the plaintiff's assertion that she is too mentally unwell to prepare and prosecute her claim.
Depression is a sadly pervasive illness in our community and it can be, as the plaintiff has suggested from the Bar table, a very serious disorder. Clearly, it can have the effect on a sufferer of causing great distress and anxiety and, presumably in some cases, it could have the additional effect of impacting upon an individual's capacity to function in day to day life and certainly one assumes in conducting proceedings such as those which are before the Court.
The difficulty is that there is nothing in the medical information before the Court which draws that conclusion. Dr Smith's letter is a bare statement of diagnosis and medication and appears directed to providing some evidentiary basis to permit the plaintiff to have a support person present with her in Court during the conduct of the Court case. Although I cannot speak for other judges, I do not see that there would be any barrier to Ms Lazarus having someone with her as a support person in Court, even without medical evidence indicative of such support. It seems to me that that will be something that Ms Lazarus can avail herself of at the hearing of her case simply by prevailing upon some friends or supporter to be present with her. There is nothing that I am aware of in the Court rules that would prevent such a person being present and, with the leave of the Court, a support person could sit at the Bar table with Ms Lazarus. It is unlikely; it seems to me, that such leave would not be forthcoming.
Whilst Ms Lazarus relies upon her mental condition to support a conclusion that she is unable to appear before the Court or prepare her case in readiness for that appearance, my observations of Ms Lazarus in Court as a plaintiff today representing herself do not really support that contention. She presents as an articulate and clearly intelligent woman and she has shown today that she is more than capable of stating her case and advancing arguments in support of it.
It is always difficult for an unrepresented litigant to conduct proceedings before a Court. That is acknowledged. For someone who suffers from an illness the difficulty is compounded. However, the summons was brought before this Court by the plaintiff and the defendants are entitled to have the matter expeditiously heard. There have already been extensions of time granted to the plaintiff to ready her case. Further delay, in circumstances where appellate proceedings are on foot in the District Court and there is a real danger of fragmentation of the plaintiff's claims between the two jurisdictions, is to be avoided. Speed is, after all, one of the overriding purposes of the case management provisions of the Civil Procedure Act 1985. Section 56 of that Act refers to the "just, quick and cheap" disposition of matters coming before the Court in its civil jurisdiction, and it is the obligation of the Court to ensure that matters proceed expeditiously and without undue delay. Always, of course, bearing in mind the requirement that justice be done between the parties.
Justice must be done to the defendant as it is to the plaintiff. Whilst the defendant fairly concedes that there would be no prejudice to the Director of Public Prosecutions in some delay in the readying of the matter and its hearing before the Court, there would be prejudice in the sort of delay that is sought here. That is particularly so bearing in mind the District Court proceedings which are on foot and which are likely to obtain a hearing date in perhaps August or September of this year.
The plaintiff additionally relies upon what she has referred to as events in the High Court in support of her application for further time in which to both prepare and have her case heard. I assume that the reference to events before the High Court is a reference to the recent decision handed down in that jurisdiction of the Independent Commission Against Corruption in New South Wales v Cunneen & Ors [2015] HCA 14. I am not familiar with the full impact of that decision and at this early stage I think it unlikely that anybody truly is. But it seems unlikely to me that the recent decision of the High Court in ICAC v Cunneen & Ors could have any great bearing on the legality of a prosecution under s 87 of the Independent Commission Against Corruption Act 1988.
The Cunneen decision, if I can refer to it in that way, as I understand it, goes to the legality of one of the Commission's proposed enquiries, that being an enquiry into private individuals. It seems to go to the capacity of the Commission to investigate alleged corruption committed by persons other than those who are public office holders and other than in circumstances where the corruption is said to have been committed in the course of public office.
I have no information as to the nature of the investigation against the plaintiff. There is no evidence of that placed before the Court. I do not know whether any such investigation of the plaintiff has come about as a result of alleged conduct in her personal capacity or alleged conduct in the execution of public duties. Be that as it may, that does not seem to have any direct impact upon the availability to the prosecuting authorities of section 87, which does no more than create a perjury type offence.
Regardless of the foundation of the investigation which appears to have been conducted against the plaintiff by officers of the Independent Commission Against Corruption, an offence of lying to the Commission when under oath and subject to an obligation to give truthful evidence seems to have no direct link to the basis of any investigation conducted by that Commission.
That being the case, and there having been nothing put to the Court to say otherwise, it seems to me that there is no real need for the plaintiff to have any extension of time so that she may digest and investigate the bearing, if there be such bearing, of the High Court's recent decision on the prosecution that was mounted against her for a s.87 offence.
As I have noted, expeditious disposition of matters coming before the Court is one of the overriding purposes of the governing legislation. Cheap disposition of such matters is another overriding purpose of the legislation, as is the just disposition of such matters. Whilst I readily acknowledge that the plaintiff's medical condition may well be such as to cause her some difficulty in her preparations for the hearing of her summons, it seems to me that that is adequately addressed by a further extension of time in which to prepare her case and I propose to grant that part of the notice of motion.
I do not propose to accede to the application for a vacation of the hearing date. There have been two days set aside of Court time for the matter to be heard and there is a significant interest in matters proceeding before this Court as they were intended to do. Having considered the impact of the plaintiff's mental condition and the possible relevance of the decision of ICAC v Cunneen, I do not regard there to be any realistic prospect of the plaintiff being prejudiced if her hearing date proceeds as it is currently listed. Accordingly I do not propose to grant that application.
The formal orders the Court makes are these:
1. The notice of motion is granted in part.
2. I vary the date by which the plaintiff is to file and serve any affidavits in support of her summons, and the written submissions in support of the summons, to 1 June 2015.
3. I vary the date upon which the first defendant is to file and serve any affidavit material in response together with any written submissions to 8 June 2015.
4. I decline to vacate the hearing date.
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Decision last updated: 30 April 2015