[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.]
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Judgment
WHITE JA: By a summons filed on 13 July 2017 as amended on 18 July 2017 and further amended on 5 March 2018 the applicants, Ms Sandra Lazarus and Ms Michelle Lazarus seek judicial review of orders of the District Court made on 19 June 2017, 20 June 2017, 14 July 2017 and 12 December 2017. The effect of those orders so far as they affect the first applicant, Sandra Lazarus, is to confirm convictions and sentences entered in the Local Court against her for offences against ss 178BB and 300(1) of the Crimes Act 1900 (NSW).
On 29 January 2018 the application of Sandra and Michelle Lazarus was fixed for hearing on 9 April 2018. This is an application by Sandra Lazarus to vacate that hearing date. The ground of the application is that because of the ill-health and medical condition of the legal representatives for the applicants, a Ms Leigh Johnson and a Mr Waterstreet, barrister, they are unable to appear on the hearing on 9 April 2018. There is no issue that the health of those legal practitioners would preclude their appearing for the applicants on the hearing fixed for 9 April 2018 and that if the hearing date is not vacated the applicants will be self-represented.
The application was brought by Sandra Lazarus. Michelle Lazarus did not appear on the application.
Ms Johnson has filed the summons on behalf of both of the applicants and she urges vacation of the hearing date.
On 5 March 2018 the Registrar made orders for the service of submissions amongst other orders.
On 21 March 2018 Ms Johnson wrote to the Registrar in which she said that she was informed by her clients that on 5 March 2018 the Court was informed that she was unwell and required hospitalisation and further treatment. She said that due to her illness and the unavailability of counsel due to his illness, they had been unable to complete written submissions which were due to be filed and served by 23 March 2018. She said that she and counsel were preparing the matter on a pro bono basis until the grant of legal aid was approved, if and when such a grant was made. She said that they would be making a formal application on 26 March 2018 requesting a new schedule to vacate the hearing date of 9 April 2018.
On 21 March 2018 the Registrar replied and said that he was sorry to hear of Mr Waterstreet's and Ms Johnson's illness and that that had been brought to his attention on 5 March 2018, and that the timetable for filing and serving submissions by the applicants was extended to accommodate that.
It is quite clear that other things being equal it would be preferable for the applicants to have legal representation and in the usual course I think the ill-health of the legal practitioners would be accommodated by vacating the hearing date and relisting the matter as soon as possible after it can be anticipated that the legal practitioners will be able to appear and provide submissions. On Sunday, 25 March 2018 Ms Johnson advised Sandra Lazarus that Mr Waterstreet had the previous week undergone heart surgery and that due to illness she would not be available on 26 March 2018. She proposed a timetable for the provisions of written submissions and other matters and for a hearing date to be fixed on 5 June 2018. I was informed by Sandra Lazarus that in that email Ms Johnson misspoke and that she had informed Sandra Lazarus that in fact 5 June 2018 would be a day on which she would not be available due to a medical appointment.
The matter was referred to me by the Registrar, not I think by way of review of any decision on a formal application to vacate the hearing date, but to deal with the application afresh to vacate the hearing date. The Registrar had written to Ms Johnson on 21 March 2018 saying:
"At the directions hearing on 29 January 2018 I expressed my concern that s 69C of the Supreme Court Act 1970 might not apply where the judicial review proceedings had been commenced before the District Court's determination had actually been made. That was one of the reasons that an early hearing date was given where there was a concern that a person was at liberty who should not be. I still have that concern, notwithstanding that the parties are not of that view. In light of that if the hearing date is to be vacated it will need to be done by way of a motion and an affidavit. The Court can hear the motion on 26 March 2018 …"
Although no notice of motion was filed the application was nonetheless made and it is appropriate to dispense with the requirement of the filing of that document.
Some background is needed to understand the Registrar's concerns. In what follows when I refer to Ms Lazarus, I will be referring to Sandra Lazarus.
Ms Lazarus was convicted in the Local Court on 27 November 2014 of offences against s 178BB and the former s 300(1) of the Crimes Act of obtaining money by false or misleading statements and making or using false instruments. The magistrate summarised the offences as involving the creation of false invoices that were presented to the accounts section of the Royal Hospital for Women and the Royal North Shore Hospital. Some further background to these matters can be seen in the judgment of this Court in Lazarus v ICAC (2017) 94 NSWLR 36; [2017] NSWCA 37.
It appears that on 27 April 2015 Ms Lazarus was sentenced in the Local Court to a term of imprisonment in respect of the offences for which she was convicted for a total term of 21 months with a non-parole period of 16 months. The delay between her conviction on 27 November 2014 and sentencing on 27 April 2015 was apparently due to the commencement of other proceedings in this Court, to the details of which it is unnecessary to refer. An "all grounds" appeal was filed in the District Court against both conviction and sentence. Ms Lazarus said that on 27 April 2015 she was placed in custody and then on that same day was released on bail on her filing a notice of appeal to the District Court. Pursuant to s 63 of the Crimes (Appeal and Review) Act 2001 (NSW) the execution of the sentence was stayed pending the determination of the appeal to the District Court. It was common ground that Ms Lazarus was released from custody on bail on 27 April 2015 and has not been in custody after that date.
Her appeal against conviction was dismissed on 20 June 2017 following an order of another judge of the District Court on 19 June 2017 refusing an application by her to adduce fresh evidence in respect of the then pending conviction appeal. Those decisions are subject to the judicial review application filed pursuant to s 69 of the Supreme Court Act 1970 (NSW) on 13 July 2017.
On 12 December 2017 Ms Lazarus' appeal against the sentences imposed in the Local Court was determined in the District Court. The effect of the District Court's sentencing orders of 12 December 2017 was that she was given an overall effective sentence of one year and nine months commencing on that date and expiring on 11 September 2019, with a non-parole period of one year and one month commencing on 12 December 2017 and expiring on 11 January 2019 and thereafter a parole period of eight months. Ms Lazarus was not in custody at this time and I am told she was not returned to custody. She then had on foot an existing summons for judicial review of her conviction, the result of which was that the sentence imposed as a consequence of the conviction was stayed. At least that is the prima facie position (see Supreme Court Act 1970, s 69C(1) and (2)(a)). Those provisions do not apply to a person who was in custody when proceedings seeking judicial review were commenced (s 69C(3)). But Ms Lazarus was not in custody.
On 5 March 2018 she filed a further amended summons for judicial review to challenge the sentence decision of 12 December 2017.
The concern raised by the Registrar was a potential issue as to whether the stay provided for by s 69C(2) of the sentence imposed on 12 December 2017 might be inapplicable because the application to quash the orders of 12 December 2017 was made by an amendment to the existing summons. The original summons filed on 13 July 2017 sought to quash orders of the District Court made on 19 and 20 June 2017.
Proceedings brought under s 69 of the Supreme Court Act are civil proceedings to which the Civil Procedure Act 2002 (NSW) applies. Section 64 of the Civil Procedure Act applies to the new cause of action introduced by the further amended summons filed on 5 March 2018. Section 64(2) and (3) of the Civil Procedure Act provide:
"64 Amendment of documents generally
…
(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.
(3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made."
The effect of those provisions is that the date of commencement of proceedings in relation to the new cause of action that challenges the validity of the sentence imposed on 12 December 2017 raised by the further amendment to the summons on 5 March 2018 is taken to be 5 March 2018. In my view it is clear that the proceedings seeking judicial review of the sentence were commenced by the filing of the new further amended summons on 5 March 2018. Accordingly, I do not share the Registrar's concern of the effect of the earlier commencement of proceedings challenging the earlier orders of the District Court. Further, s 69A(5) of the Supreme Court Act provides that in determining proceedings for judicial review the Court may order that the imprisonment under the original sentence of imprisonment is to commence or recommence on a day specified by the Court. In my view that provision would in any event empower the Court to make the appropriate orders in relation to the commencement of the term of imprisonment if the proceedings by way of judicial review fail.
Counsel who appeared for the respondents, ICAC and the Director of Public Prosecutions, accepted that the execution of the current sentence is stayed, so that if the proceedings for judicial review fail, the result would not be that the period of imprisonment would be taken to be running notwithstanding that Ms Lazarus is not in custody. This case is different from Gelle v DPP (NSW) [2017] NSWCA 245. There the sentence imposed by the Local Court and reimposed by the District Court was not stayed because the offender had been sentenced to an intensive corrections order by s 69C(6). The offender was taken to be a person in custody. That is not this case. Section 69C(6) does not apply and Ms Lazarus is not a person in custody.
Accordingly, I think that the reason the Registrar was minded to retain the fixture, notwithstanding the health issues affecting Ms Lazarus' legal representatives is not well founded.
This case has had an extraordinary series of delays involving multiple applications in the District Court, the Supreme Court and in this Court. Nonetheless, a further delay of approximately a further two months to enable the applicants to retain their legal representatives who have now acted for the applicants on a pro bono basis since at least 2017, although unfortunate, must be accommodated. I think it quite clear that without legal representation Ms Lazarus would not be in a position to advance whatever might be merits of the somewhat elaborate grounds raised in the summons and in a notice that has been given of an asserted constitutional matter.
As I have said, Ms Johnson proposed a fresh timetable, which includes provision for the filing of a White Book. The respondent has already filed a White Folder. It is likely that it will need to be supplemented. In the case of Ms Lazarus the White Folder does not include the sentences and reasons for sentence imposed in the Local Court, nor the originating processes in the District Court. The timetable for submissions proposed by Ms Johnson should be adopted.
I make the following orders:
1. Vacate the hearing date fixed for 9 April 2018.
2. Order the applicants to file and serve written submissions by 13 April 2018.
3. Order the respondents to file and serve written submissions by 27 April 2018.
4. Any submissions that any intervener may wish to rely upon are to be filed and served by 4 May 2018.
5. Stand over the proceeding to the Registrar's list on 7 May 2018 for the purpose of the Registrar's making any further directions that might be required for the filing of any submissions in reply and for the supplementation of the White Folder or any other directions that might be required.
6. Costs of the application to vacate the hearing date will be costs in the proceedings.
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Decision last updated: 05 April 2018