[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
Judgment
The applicants (Sandra Lazarus and Michelle Lazarus) seek judicial review of orders of the District Court made following their separate appeals from decisions of the Local Court under Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act), s 11. Those applications are presently listed for hearing for two days commencing 22 November 2018. The proceedings were listed on 5 November 2018 to enable the applicants to make foreshadowed applications to vacate that hearing date so as to give counsel nominated by the Legal Aid Commission, Mr PD Lange, the opportunity to complete a merit advice in support of their application for Legal Aid made on 29 January 2018.
The judicial review applications were first fixed for hearing on 9 April 2018. That hearing date was vacated in the circumstances recorded by White JA in Lazarus v Independent Commission Against Corruption [2018] NSWCA 66. As his Honour noted at [22], by March 2018 there had been an "extraordinary series of delays" in relation to the final disposal of the underlying criminal proceedings against the applicants involving multiple applications in the District Court, the Supreme Court, and in this Court. That procedural history is summarised by Leeming JA in Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37. One consequence of any delay in the determination of these proceedings is that the sentence of imprisonment initially imposed on Sandra Lazarus by the Local Court on 27 April 2015, and subsequently varied by the District Court on 12 December 2017, remains unserved and the subject of a stay of execution until the proceedings are finally determined: Supreme Court Act 1970 (NSW), s 69C(1), (2)(a) and (4). Of course the ultimate outcome of the success of the present proceedings could be that the applicants' convictions are set aside.
On 5 November 2018 initially Ms Leigh Johnson and later Mr PD Lange appeared for the applicants. In support of the application to vacate the hearing, Ms Johnson indicated that the subject of the application for Legal Aid, and accordingly the proposed merit advice, is the applicants' case as formulated in the document filed on 5 March 2018 and described as the New Further Amended Summons (Supervisory Jurisdiction). Mr Lange advised the Court that, given the volume of material that he expected it would be necessary for him to address, he would be unable to provide such an advice until early in the new year.
The immediate question raised by the present application is whether there is any realistic prospect that Mr Lange's consideration will lead to a grant of Legal Aid which permits the applicants to be legally represented at the final hearing of their currently formulated application. As matters stood as at 5 November 2018, the only means by which the Court could make an assessment of that prospect was by considering for itself the merits of that case.
The further amended summons filed 5 March 2018 contains six "grounds" for judicial review supporting the thirty orders for relief which are sought. However, neither those "grounds" nor the orders clearly identify respects in which it is claimed that the District Court acted beyond its jurisdiction by disposing of the applicants' appeals in some way which was outside the limit of its functions or powers.
It is convenient at this point to identify the orders which are the subject of the claims for judicial review. In the case of Sandra Lazarus, they are orders of the District Court made on 20 June 2017, 14 July 2017 and 12 December 2017. By the first her conviction appeal was dismissed under s 21(1) because of her failure to appear. By the third under s 20(2) her sentence appeal was varied as to part and otherwise dismissed, the effect of the variation being to reduce her overall non-parole period by three months. That sentence appeal was originally listed for 14 July 2017 and on Sandra Lazarus' application adjourned and heard on 7 and 8 December 2017. The relevant orders in relation to Michelle Lazarus are those made on 19 June 2017 under s 21(1), again because of her failure to appear on that day.
In their written submissions in response to the applications for judicial review the second and third respondents tentatively identify the following questions as arising on the claims currently made:
1. Whether the orders made by the District Court on 19 June (King DCJ), 20 June (Conlon DCJ), 14 July (Hoy DCJ) and 12 December 2017 (Hoy DCJ) contravened Ch III of the Constitution by reason that they "usurp the judicial function and are incompatible with the institutional integrity of the Courts of New South Wales invested with federal jurisdiction" (grounds 1, 2).
2. Whether in summarily dismissing the appeals or appeal of each applicant in her absence the District Court failed to exercise its jurisdiction to conduct an appeal by way of rehearing (grounds 1, 2).
3. Whether the District Court misapplied ss 17 and 18 of the CAR Act, in some way involving jurisdictional error (grounds 1, 2, 3 and 4).
4. Whether the Court Appearance Notices by which the underlying criminal proceedings were commenced in the Local Court were invalid because they were executed by an officer of Independent Commission Against Corruption without lawful authority (grounds 3 and 4).
5. Whether the District Court failed to act independently, and if so whether it contravened the Constitution in some way in doing so (grounds 5 and 6).
6. Whether the orders made by the District Court (Hoy DCJ) on 14 July and 12 December 2017 were beyond power because the operation of Supreme Court Act 1970 (NSW), s 69C required that the proceedings be adjourned (grounds 4 and 6).
The arguments underlying questions (4) and (5) above are considered in this Court's decisions in Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 and Lazarus v Director of Public Prosecutions [2016] NSWCA 47. Question (2) does not describe any failure on the part of the District Court to exercise its jurisdiction in an appeal under Part 3, Div 1 of the CAR Act. In the case of Michelle Lazarus' conviction and sentencing appeals, and in the case of Sandra Lazarus' conviction appeal, the Court's power to dismiss those appeals summarily under s 21 was enlivened because each of them did not appear at the relevant hearing. The remaining questions do not clearly describe a respect in which the District Court acted beyond jurisdiction by entertaining a matter outside the limits of its functions or powers.
On 5 November, and to allow Mr Lange the opportunity to give some, albeit necessarily brief, consideration to the merits of the case which the applicants presently seek to make, the Court adjourned the further hearing of their application to 7 November. At that adjourned hearing Mr Lange proposed three "potential" arguments that might be available to the applicants. The first and second were that they were denied procedural fairness, Michelle Lazarus at the hearing on 19 June 2017 and Sandra Lazarus at the hearing on 20 June 2017; when orders were made under CAR Act, s 21. Neither of those arguments is sought to be made in the applicants' current claim, and neither was pressed by Mr Lange as being more than merely "arguable". The third "potential" argument was that raised by question (4) above, which, it was acknowledged, was addressed by Basten and Ward JJA in the leave application in Lazarus v Director of Public Prosecutions [2016] NSWCA 47. No further argument was addressed to the merits or otherwise of the applicants' currently pleaded case: and no application was made to amend that case and no proposed amendment was proffered in support of the application for the vacation of the hearing date.
In these circumstances I am not satisfied that there is utility from the applicants' perspective in vacating the hearing date to enable further consideration by Mr Lange or other counsel directed to the merits of the applicants' case for the purpose of their pursuing a grant of Legal Aid. Although it would clearly be preferable for them to have funded legal representation in the pursuit of their case, that outcome is not made more likely by vacating the hearing date. Whether the applicants will be legally represented at the hearing remains uncertain. However, their oral application to vacate that hearing is rejected with costs.
[3]
Amendments
08 November 2018 - [1] "22 November 2017" amended to "22 November 2018"
08 November 2018 - [8] Typographical amendments
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Decision last updated: 08 November 2018