HIS HONOUR: This is the hearing of a notice of motion filed on 3 June 2022 by the fifth defendant, the Attorney General for New South Wales (the Attorney General), seeking orders that the Court dismiss or strike out certain proceedings that were commenced by the three plaintiffs by way of a summons filed on 1 April 2022, in which orders were sought in respect of the first four defendants. The three plaintiffs are sisters.
[3]
The history of the matter
The following is an outline of some aspects of the procedural history of this matter, which was protracted, in order to place the orders sought in context.
In January 2009, the Chief Executive of the South-Eastern Sydney Illawarra Area Health Service reported possible corrupt conduct at the Royal Hospital for Women to the New South Wales Independent Commission Against Corruption (the Commission), pursuant to s 11 of the Independent Commission Against Corruption Act 1988 (NSW) (the ICAC Act). That prompted an investigation by the Commission concerning allegations of fraud on the Royal Hospital for Women and the Royal North Shore Hospital in relation to purported clinical trials of the use of a device to diagnose cancer. The plaintiffs were "persons of interest" in the investigation.
The investigation culminated in a report to the New South Wales Parliament in August 2011 by the then ICAC Commissioner, the Hon David Ipp AO QC ("Investigation into corrupt conduct involving alleged fraud on two Sydney hospitals"). The Commission found that the first and second plaintiffs had engaged in corrupt conduct and that the second plaintiff had given false evidence during the course of the investigation. The Commission was critical of the third plaintiff's reliability as a witness but did not make a finding of corruption. Pursuant to s 74A(2) of the ICAC Act, the Commission expressed its opinion that consideration should be given to obtaining the advice of the New South Wales Director of Public Prosecutions with respect to the prosecution of the first and second plaintiffs for certain offences.
At the time the Commission commenced its investigation, the Hon Kristina Keneally (the first defendant) was the Premier of New South Wales.
[4]
Proceedings against the first plaintiff
The first plaintiff was subsequently charged with 58 offences, comprising 15 instances of presenting false invoices contrary to s 178BB of the Crimes Act 1900 (NSW) and 43 instances of making false instruments contrary to s 300(1) of the Crimes Act (both sections are now repealed). On 27 November 2014, she was convicted by Magistrate Keogh (as her Honour then was) of 16 counts contrary to s 178BB and 28 counts contrary to s 300(1) of the Crimes Act. The matter was stood over to 9 February 2015 for sentence.
The sentence hearing was stayed pending the determination of an amended summons by which the first plaintiff sought judicial review of the proceedings which had led to the convictions. In an amended summons, the first plaintiff pleaded that Magistrate Keogh had erred in failing to accede to an application made during the hearing seeking that she recuse herself from further hearing the matter for actual or, at least, reasonably apprehended bias against the first plaintiff. The application was heard by Garling J (the fourth defendant). On 14 April 2015, his Honour dismissed the amended summons and made an order for costs against the first plaintiff: Lazarus v Director of Public Prosecutions (NSW) [2015] NSWSC 426.
On 27 April 2015, the first plaintiff was sentenced by Magistrate Keogh to imprisonment for 1 year and 9 months with a non-parole period of 1 year and 4 months. On 16 December 2015, an application to the Court of Appeal, seeking leave to appeal the decision of the fourth defendant, was dismissed: Lazarus v Director of Public Prosecutions (NSW) [2015] NSWCA 408.
The conviction and sentence were appealed in the District Court, the notice of appeal being lodged the same day as sentence was handed down. It is not necessary to review those proceedings for the purposes of this application.
[5]
Proceedings against the second plaintiff
The second plaintiff was charged with seven offences of giving false or misleading evidence contrary to s 87(1) of the ICAC Act. On 23 May 2014, following a contested hearing, Magistrate Barnes (the third defendant) convicted her of four of the charges and imposed a total sentence of 9 months imprisonment, which was suspended pursuant to s 12 (since repealed) of the Crimes (Sentencing Procedure) Act 1999 (NSW) upon her entering into bonds to be of good behaviour for that period. An appeal against conviction to the District Court was dismissed.
By an amended summons filed on 23 March 2015, the second plaintiff sought judicial review of the decision of the third defendant, pleading that the basis for review was:
"… perceived bias, actual bias, errors of law, ultra vires, lack of procedural fairness, lack of evidence, failure to take into account relevant considerations, Wednesbury unreasonableness, bad faith, failure to ensure that the transcript was an accurate record of the court proceedings."
The application for judicial review was heard by the fourth defendant. The second plaintiff filed a notice of motion contending that his Honour should recuse himself from hearing the application by reason of "a conflict of interest", since by that time he had heard and dismissed the first plaintiff's application and both matters arose from the same ICAC investigation. On 21 August 2015, the fourth defendant dismissed the motion, proceeded on the amended summons and determined that none of the 11 grounds was made out: Lazarus v Director of Public Prosecutions (NSW) [2015] NSWSC 1116. His Honour noted:
"144 However, as the authorities to which I have earlier referred demonstrate, even if I was persuaded that there was a ground, or there were grounds, sufficient to enliven the discretion of the Court to consider whether it should grant relief by way of an order in the nature of a writ of certiorari, I would not have done so.
145 As I have earlier indicated, there exists a full right of appeal from a decision of the Local Court to the District Court of NSW. That right of appeal has been engaged in this case by Ms Lazarus. The appeal is fixed for a hearing in November 2015. The nature of that appeal is such that the matter will be determined by a District Court Judge having regard to its merits, in accordance with the procedure set down by the Crimes (Appeal and Review) Act.
146 That appeal is an equally effective and convenient remedy. I agree with what Kirby P said in Boral Gas (NSW) Pty Ltd v McGill [1993] 32 NSWLR 501 at 508, where he said:
'This appeal is an equally effective and convenient remedy. In fact, it is more convenient. It is the appropriate way in which any resolution of the issues about whether there was evidence to support the findings, what weight should be given to the evidence, whether the evidence of any one person or another was reliable, ought all be addressed.'
147 I may add that particularly is this so in circumstances where much depends upon the detail of the evidence given by Ms Lazarus to the ICAC, and the detail of her evidence which she gave in the Local Court about her state of mind at the time. These are matters entirely suitable for, and best heard by, a Judge or Magistrate, who has the benefit of seeing and hearing all of that evidence. A court sitting to undertake a judicial review does not have that benefit.
148 Even if I was persuaded, and as I have indicated I am not, that there was any error, I would not exercise my discretion to make any orders, because of the existence of the right to appeal to the District Court which has been exercised in this case.
149 Simply put, this criminal process which was lawfully engaged, should continue through the ordinary criminal process involving an appeal on all grounds to the District Court, and thereafter in accordance with legislation."
An application by the second plaintiff to the Court of Appeal for leave to appeal this decision of the fourth defendant was refused: Lazarus v Director of Public Prosecutions (NSW) [2016] NSWCA 47.
This summary is only of the proceedings that are necessary to provide context to the prayers in the plaintiffs' summons. There are multiple other judgments which are unnecessary to canvass for the purposes of this judgment.
[6]
The orders sought by the plaintiffs
The plaintiffs' prayers for relief constitute more than 15 pages of the summons. A distillation is as follows.
Firstly, the plaintiffs seek seven declarations that the first defendant engaged in torture in various ways, as proscribed by s 274.2 of Sch 1 of the Criminal Code Act 1995 (Cth) (the Criminal Code), by authorising the Commission to investigate the plaintiffs.
Secondly, that consequent to those declarations, the findings of the Commission in relation to the plaintiffs which were filed in the NSW Parliament in August 2011 be "set aside" pursuant to s 69 of the Supreme Court Act 1970 (NSW).
Thirdly, in relation to the first plaintiff, nine declarations are sought declaring that the second defendant engaged in torture for various purposes contrary to s 274.2 of the Criminal Code in relation to her Honour's conviction of the first plaintiff in spite of "exculpatory evidence", and "plac[ing] her in custody", which caused "extreme physical damage to the first plaintiff's permanent spinal injury".
Fourthly, consequent to those declarations, that the convictions of the first plaintiff by the second defendant be quashed.
Fifthly, in respect of the second plaintiff, nine declarations are sought declaring that the third defendant engaged in torture for various purposes contrary to s 274.2 of the Criminal Code. The declarations sought relate to his Honour's conviction of the second plaintiff in spite of "exculpatory evidence" and an allegation that he failed to apply legislative provisions in relation to the "validity of the New South Wales Local Court, 'Court Attendance Notice'" by convicting and sentencing the second plaintiff.
Sixthly, consequent upon those declarations, that the convictions of the second plaintiff by the third defendant be quashed.
Seventhly, in relation to the first plaintiff, seven declarations are sought declaring that the fourth defendant engaged in "torture" contrary to s 274.2 of the Criminal Code in various ways for the purpose of extracting "information and/or confessions". It is also alleged that the fourth defendant committed that offence by allowing the second defendant to "torture" the first plaintiff.
Eighthly, consequent to those declarations, that the orders "and judgment" made by the fourth defendant on 14 April 2015 be quashed (I note that although orders were made on 14 April 2015, the judgment was handed down on 16 April 2015).
Ninthly, in relation to the second plaintiff, seven declarations are sought declaring that the fourth defendant engaged in "torture" contrary to s 274.2 of the Criminal Code in various ways. Those means of "torture" resulted in the judgment of the fourth defendant dated 21 August 2015 which dismissed the second plaintiff's application to quash her convictions by the third defendant.
Tenthly, consequent to those declarations, the plaintiffs seek that the judgment of the fourth defendant dated 21 August 2015 be set aside and the orders made be quashed.
The plaintiffs' summons was supported by an affidavit sworn by the second plaintiff that was filed on 7 April 2022. The material in the Court Book includes an affidavit sworn by the third plaintiff dated 29 May 2022 that has not been filed and which I disregard.
[7]
The notice of motion seeking dismissal or strike out
On 21 April 2022, the Attorney General filed a notice of motion seeking that he be joined as a defendant so that there would be a contradictor to the prayers for relief sought in the amended summons. On 2 June 2022, Registrar Jones joined the Attorney General to the proceedings as the fifth defendant. On 3 June 2022, the fifth defendant filed the notice of motion, which is the subject of the present proceedings, seeking an order that the proceedings be summarily dismissed pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR) and, in the alternative, that the summons be struck out.
Registrar Jones set a timetable for the filing by the plaintiffs of any evidence in response to the notice of motion and written submissions by the parties. The hearing of the motion was set down for 24 November 2022. The fifth defendant filed his written submissions on 11 July 2022, which was within that timetable. The plaintiffs did not file any material. On 22 November 2022, the Court wrote to the parties by email, reminding them of the hearing date and noting that the plaintiffs had not forwarded any evidence or written submissions. The following day, at 9:55am, the plaintiffs responded by email copied to the fifth defendant attaching a purported Notice of Discontinuance (the Notice) in respect of their summons. The Notice stated that "each active party consents to the discontinuance" and, as a term of discontinuance:
"That, following the discontinuance of this proceeding … Commonwealth programs (Centerlink, NDIS, etc) are not utilised to threaten Mss. Lazarus, causing further extreme hardship, as the Mss. Lazarus (and family members) are recipients of the mentioned Commonwealth programs."
The solicitor for the fifth defendant responded to the plaintiffs by email 23 minutes later, stating that it did not consent to the proceedings being discontinued on those terms, nor did the fifth defendant accept or agree to the allegations and insinuations of those terms.
[8]
No appearance by the plaintiffs
There was an appearance at the hearing of the motion on behalf of the fifth defendant. The first three defendants filed submitting appearances and the fourth defendant was excused from attendance. The plaintiffs did not appear or further communicate with the Court or any of the defendants. In view of the exchange of emails on 22 and 23 November, it was apparent that the plaintiffs were aware of the date of the hearing and that the fifth defendant opposed the discontinuance of the proceedings. No submission had been received by the plaintiffs seeking an adjournment. Accordingly, since an adjournment of the hearing in accordance with r 13.6 of the UCPR would have served no purpose, I proceeded to consider the Notice.
[9]
The notice of discontinuance
Rule 12.1 of the UCPR relevantly provides as follows:
"12.1 Discontinuance of proceedings
(1) The plaintiff in any proceedings may, by filing a notice of discontinuance, discontinue the proceedings, either as to all claims for relief or as to all claims for relief so far as they concern a particular defendant -
(a) with the consent of each other active party in the proceedings, or
(b) with the leave of the court.
(2) A notice of discontinuance -
(a) must bear a certificate by the plaintiff, or by his or her solicitor, to the effect that the plaintiff does not represent any other person, and
(b) except where it is filed with the leave of the court, must be accompanied by a notice from each party whose consent is required by subrule (1) to the effect that the party consents to the proceedings being discontinued in accordance with the notice of discontinuance.
(3) If any such consent is given on terms, those terms are to be incorporated in the notice of consent.
… ."
There was no evidence of service of the Notice on any of the other four defendants, or of a notice of the consent of any of the defendants to the proceedings being discontinued, as required by rr 12.1(1)(a) and (2)(b). That being so, and there being no submissions made by the plaintiffs as to why leave should be granted for the Notice to be filed, leave was refused and the Court proceeded to hear the fifth defendant's notice of motion.
[10]
The hearing of the notice of motion
The fifth defendant tendered material in support of the motion which included an affidavit by a solicitor of the New South Wales Crown Solicitor's Office that annexed relevant judgments and a history. The fifth defendant clarified that the orders sought are not against the third plaintiff and otherwise relied upon his written submissions.
[11]
Determination of the application
As noted, the prayers of the notice of motion are that the summons is dismissed pursuant to r 13.4(1) of the UCPR or, alternatively, that it is struck out. The fifth defendant also seeks an order for costs.
Rule 13.4 provides:
"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)."
The principles relevant to the circumstances in which proceedings may be dismissed pursuant to r 13.4 are well-known. The test to be applied to determine whether no reasonable cause of action is disclosed is derived from the principles set out by Barwick CJ in General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at 128-130 (General Steel Industries). The Court is to consider whether "the case of the plaintiff is so clearly untenable that it cannot possibly succeed": see at 130.
In General Steel Industries, Barwick CJ, at 128-129, emphasised the need for a court to be satisfied that no reasonable cause of action is disclosed:
"The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion … 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."
Rule 13.4(1)(b) of the UCPR was considered by the Court of Appeal in Ugur v Attorney General for New South Wales [2019] NSWCA 86. White JA, at [70], considered the purposes of the power in r 13.4 of the UCPR:
"One of the purposes of the power in r 13.4 of the UCPR to dismiss a proceeding summarily as frivolous or vexatious or as disclosing no reasonable cause of action or as being an abuse of the process of the court, is to save the defendant from the cost, delay and vexation in having to defend clearly untenable proceedings which raise no real question of fact or law. Another purpose is the protection of the interests of the public in not having scarce judicial resources wasted in dealing with frivolous applications."
In Leerdam v Noori (2009) 227 FLR 210; [2009] NSWCA 90, Macfarlan JA observed that the General Steel Industries principles may more frequently be satisfied where questions of law are in issue. His Honour, at [75], stated that:
"Such a course should only be taken in a clear case. Descriptions of the test to be applied have included such phrases as 'so obviously untenable that it cannot possibly succeed' and 'manifestly groundless' (General Steel Industries … at 129). Particular caution is required where factual questions are involved as it is difficult to predict in advance of a final hearing the precise manner in which the evidence will unfold. Whilst caution is also required where, as here, the application turns on questions of law and there is no reasonable prospect that deficiencies in what is pleaded will be able to be cured by amendment, opportunities to summarily dismiss or strike out claims will arise more frequently."
In Seidler v Carrol & O'Dea [2013] NSWSC 338, McCallum J (as her Honour then was) set out a summary of the relevant principles in relation to a strike out application under r 14.28 of the UCPR. As part of this summary, her Honour, at [6]a, alluded to the need to consider such applications in light of s 56 of the Civil Procedure Act 2005 (NSW):
"… the position must be considered in light of the requirements of s.56 Civil Procedure Act which obliges the court to exercise its powers to 'facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings: Gangi v Boral Resources (NSW) Pty Ltd [2012] NSWSC 398 per [Schmidt J] at [30]; Pacanowski & Anor v Wakerman & Ors [2009] NSWCA 402 per Tobias JA at [19] …"
As such, the Court must have regard to the overriding purpose of civil litigation contained in s 56 of the Civil Procedure Act, which relevantly provides:
"56 Overriding purpose
(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.
(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.
(3A) (Repealed)
(4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3) -
(a) any solicitor or barrister representing the party in the proceedings,
(b) any person with a relevant interest in the proceedings commenced by the party.
(5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs.
…"
The filing details of the plaintiffs' summons identified a legal representative, who is a solicitor. The notice of discontinuance does not identify a legal representative. I assume that at this point in the proceedings, the plaintiffs are not legally represented. In any event, in my view, the summons is so poorly conceived and drafted as to suggest a minimal contribution by their legal representative, so that further observations by McCallum J in Seidler v Carrol & O'Dea concerning pleadings provided by a self-represented litigant are relevant:
"8 Since Ms Seidler represents herself in the proceedings, it may be assumed that she has had to draft the proposed amended pleading either without any, or any substantial, assistance from a lawyer. Views may differ as to the extent to which that is a relevant consideration in determining whether a pleading should be allowed to stand. Access to justice is a fundamental aspect of the administration of justice. The court should be vigilant to guard against the rigid application of principle at the expense of facilitating the just resolution of matters properly brought forward for judicial determination. To that end, a degree of flexibility and even indulgence might appropriately be afforded to a self-represented litigant in a proper case. So much is recognised in the remarks of Kirby J in Attorney-General, Re; Ex parte Skyring [1996] HCA 4; (1996) 135 ALR 29, where his Honour referred to the need for 'vigilance, and not impatience' in the case of an applicant who is not legally represented.
9 The fundamental importance of facilitating equal access to justice warrants the giving of close consideration to the terms of a pleading in order to discern, with an open mind, whether there is a reasonable cause of action nestling within obscure or difficult language used by a self-represented litigant.
10 Conversely, however, a misconceived or poorly-pleaded claim imposes considerable stress on the due administration of justice and ought equally to be guarded against. The same vigilance must accordingly be exercised not to suffer the court to become a forum for the agitation of grievances which lack any juridical foundation."
[12]
Consideration
As noted, the plaintiffs seek declarations that the first four defendants committed torture contrary to s 274.2 of the Criminal Code. In written submissions, the fifth defendant noted that the filing of a summons seeking a declaration that a person has committed the crime of torture is not a means of commencing a criminal prosecution.
The plaintiffs' contention that the first defendant authorised the Commission to investigate the plaintiffs is contrary to the terms of the Commission's Report to Parliament, which makes clear that the investigation was initiated by the Commissioner following a complaint by the Chief Executive of the South-Eastern Sydney Illawarra Area Health Service.
The plaintiffs seek that the findings of the Commission in relation to all three plaintiffs be set aside pursuant to s 69 of the Supreme Court Act. However, the Commission is not a party to the proceedings and, in any event, the Court does not have power to make an order in the nature of certiorari (pursuant to s 69) to set aside findings of the Commission when the findings did not create or affect legal rights or obligations: Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 at 148 per Gleeson CJ, Priestley JA agreeing and Mahoney JA expressing the same view at 178.
As noted, consequent to the sought declarations of torture, the plaintiffs seek that the convictions of the first and second plaintiffs by the second and third defendants respectively be quashed and that the orders made by the fourth defendant be set aside.
Since these orders are sought on the basis of declarations of criminal conduct by judicial officers, the doctrine of judicial immunity becomes a further barrier for the plaintiffs to overcome. The doctrine of judicial immunity protects judicial officers from findings that they engaged in criminal conduct in the exercise of their judicial functions: Yeldham v Rajski (1989) 18 NSWLR 48 per Kirby P at 58 and 64 and Hope AJA (Priestley JA agreeing) at 69.
The orders sought to the effect that, consequent to the declarations of torture, the orders made by Magistrate Keogh and Magistrate Barnes be set aside, are unavailable in any event because both convictions and sentences were the subject of appeals to the District Court, in which case the only decisions that may be challenged are those: Dacich v Director of Public Prosecutions (NSW) [2020] NSWCA 313 per Basten JA at [24]. Appeals against those decisions, by way of judicial review, have been heard and dismissed: Lazarus v Independent Commission Against Corruption [2019] NSWCA 100. Accordingly, a further review would be an abuse of process and thus amenable to being dismissed pursuant to r 13.4(1)(c) or struck out.
In Lazarus v The State of New South Wales [2018] NSWSC 998, Walton J held that an attempt by the first plaintiff to challenge her conviction was precluded by judicial immunity. In Hammond v New South Wales [2013] NSWSC 1930 at [64], Adamson J (as her Honour then was) stated:
"Proceedings instituted against judicial officers in contravention of judicial immunity ought be summarily dismissed, whether on the ground that they amount to an attempt to re-litigate issues that have already been heard and determined to finality (Bar-Mordecai v Bryson and Ors [2002] NSWSC 815; Attorney General v Bar-Mordecai [2005] NSWSC 142 at [65]-[66]) or because they are otherwise an abuse of process."
In relation to the orders sought against the fourth defendant, the fifth defendant submits that, quite separately from the impediment of the doctrine of judicial immunity, an order of the Supreme Court cannot be quashed pursuant to s 69 of the Supreme Court Act, since the common law prerogative writs which the power in s 69 replicates did not permit it: see Penson v Titan National Pty Ltd [2015] NSWCA 404 per the Court (Meagher, Gleeson and Simpson JJA) at [8].
[13]
Determination
I find that the fifth defendant's submissions are sound and conclude that the plaintiffs' summons should be dismissed pursuant to rr 13.4(1)(b) and (c) of the UCPR. No reasonable cause of action is disclosed and the proceedings would be an abuse of process of the Court.
It is appropriate for costs to follow the event.
[14]
Orders
I make the following orders:
(1) Refuse leave to the first and second plaintiffs to file the notice of discontinuance dated 23 November 2022;
(2) The summons filed 1 April 2022 is dismissed;
(3) The first and second plaintiffs are to pay the fifth defendant's costs of the proceedings.
[15]
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: 11 April 2023