Sandra Lazarus, Michelle Lazarus and Jessica Lazarus v Director of the Independent Commission Against Corruption

INTRODUCTION

1. On 1 September 2015 I made orders pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 ("the Rules") dismissing, in large part, the proceedings brought by the plaintiffs against the defendant. In respect of one remaining paragraph of the statement of claim I made an order pursuant to r 14.28(1)(b) of the Rules striking out that paragraph, but granted leave to the plaintiffs to file and serve an amended statement of claim (restricted to the cause of action pleaded in that paragraph) by 15 September 2015. I also made consequential orders requiring that each of the plaintiffs be notified of the orders that I had made. The reasons which led me to make those orders are more fully set out in my previous judgment: Sandra Lazarus, Michelle Lazarus and Jessica Lazarus v Director of the Independent Commission Against Corruption [2015] NSWSC 1265.
2. In accordance with my previous orders, the matter has come before me again today for further directions. The plaintiffs have been called outside the Court three times. They have not appeared. Mr Chrysostomou of counsel, who appears on behalf of the defendant, has tendered a letter of 1 September 2015 under the hand of his instructing solicitor, Karen Fox, addressed to the plaintiff Sandra Lazarus informing her of my previous orders. I am informed by Mr Chrysostomou, and I accept, that a letter in terms identical to that which he has handed to me this morning was also sent to each of the plaintiffs Michelle Lazarus and Jessica Lazarus. I also accept that the same correspondence was sent to the email address of the plaintiff Sandra Lazarus at 2.33pm on 1 September 2015, that being the afternoon of the day on which the orders were made.
3. Against the background which is more fully set out in my earlier judgment, having regard (in particular) to the failure of the plaintiffs to comply with the orders that I made on the previous occasion, and also having regard to their failure to appear before the Court today, Mr Chrysostomou has sought an order that the balance of the proceedings be dismissed. In advancing that application he has acknowledged that there is no motion formally before the Court seeking such an order. However, he pointed out that the provisions of s 86 of the Civil Procedure Act 2005 (NSW) ("the CPA") confer power on the Court to make an order of its own motion. Mr Chrysostomou has submitted that in light of the background to the matter I should exercise the power conferred by that section and dispense with the necessity to file a formal notice of motion.