Lazarides v Di Lorenzo
[2019] VSC 693
•17 October 2019 First Revision: 18 October 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2018 00348
S CI 2018 02215
S CI 2018 00621
| BILL LAZARIDES | Plaintiff |
| v | |
| NERINA DI LORENZO & ORS | Defendants |
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JUDGE: | Cavanough J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 November 2018 |
DATE OF JUDGMENT: | 17 October 2019 First Revision: 18 October 2019 |
CASE MAY BE CITED AS: | Lazarides v Di Lorenzo & Ors |
MEDIUM NEUTRAL CITATION: | [2019] VSC 693 |
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ADMINISTRATIVE LAW – Judicial review – Applications for personal safety intervention orders – Applications made against officers of municipal council and officer of RSPCA in relation to conduct connected with the enforcement or administration of the law – Applications refused by Magistrates’ Court and County Court – Applications legally and factually misconceived and involving abuse of process – Applications for judicial review likewise baseless – Applications for judicial review dismissed – Personal Safety Intervention Orders Act 2010 (Vic) ss 4, 5, 11, 13, 61, 96, 97.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff in person | |
| For the First Defendant in S CI 2018 00348 and S CI 2018 002215 | Mr A Halse | MNG Lawyers |
| For the First Defendant in S CI 2018 00621 | Mr A Burnett | HWL Ebsworth |
HIS HONOUR:
Introduction and overview
The plaintiff, Mr Bill Lazarides, has been in dispute with the Moreland City Council for many years over many issues, including issues relating to the sanitary condition of a certain house in which he has an interest in Cleve Road, Pascoe Vale, within the municipal district of the Council. The issues relate in part to pet dogs which Mr Lazarides has kept from time to time at the house. The dogs have also been the subject of actions taken from time to time by officers of the Royal Society for the Prevention of Cruelty to Animals (‘RSPCA’) under the Prevention of Cruelty to Animals Act 1986 (‘PCA Act’). In particular, in 2017, an officer of the RSPCA, as informant, brought criminal proceedings under the PCA Act against Mr Lazarides in relation to the dogs. Those proceedings then went on appeal to the County Court of Victoria in 2018.
Another major issue as between Mr Lazarides and the Council relates to the moving or impounding by the Council of various motor vehicles that from time to time were left in a street or streets in the vicinity of the house, being vehicles said by Mr Lazarides to belong to him. Those actions appear to have been taken by the Council under cl 3 of sch 11 of the Local Government Act 1989 (Vic), on the basis that the vehicles were considered to be unregistered or abandoned.
In 2017 and 2018, Mr Lazarides commenced applications in the Magistrates’ Court of Victoria against the Chief Executive Officer and other officers of the Council and, in one case, against the Chief Executive Officer of the RSPCA. The applications purported to be made under the Personal Safety Intervention Orders Act 2010 (Vic) (‘PSIO Act’). The applications contained allegations of harassment, interference with property and the like. All of the applications were dismissed or struck out by the Magistrates’ Court. In each case, Mr Lazarides appealed to the County Court, but without success.
Before this Court, Mr Lazarides now seeks judicial review of the decisions of the County Court, insofar as those decisions related to two applications for intervention orders against the CEO of the Council and one application for an intervention order against the CEO of the RSPCA. Mr Lazarides has apparently selected those decisions on the theory that the CEO of the Council represents the whole Council and on the theory that the CEO of the RSPCA represents the whole of that organisation.
Thus there are three applications for judicial review. The Court has heard them together.
Mr Lazarides has not demonstrated any error of law or jurisdictional error on the part of the County Court in any of the cases. Hence his applications to this Court must be dismissed.
Further, I agree with the defendants that Mr Lazarides could not have succeeded in the Magistrates’ Court or the County Court in any event because the past conduct of which he complained amounted to conduct engaged in by a person performing official duties for the purposes of the enforcement of the criminal law or the administration of an Act or other similar purposes within s 11 of the PSIO Act. Therefore, by virtue of s 11 of the PSIO Act, the PSIO Act did not otherwise apply to the conduct complained of.
Nor could the Courts below properly have made any order fettering the discretion of officers of the Council or of the RSPCA in relation to the future exercise of their statutory powers or the future performance of their statutory functions.[1] Neither could this Court do so. Thus Mr Lazarides’ proceedings were and are misconceived in law.
[1]As to the functions of municipal councils in relation to public health and wellbeing, see Public Health and Wellbeing Act 2008 (Vic), especially pt 3 div 3. The RSPCA is referred to in the Prevention of Cruelty to Animals Act 1986 (Vic) (‘the PCA Act’); and provision is made by ss 18(1)(b)(ii) and 24ZW(1)(b)(ii) of the PCA Act for the conferral investigative, protective and enforcement powers on officers of the RSPCA. Section 24ZW(1)(b) of the PCA Act also provides for an officer of a municipal council to be authorised to file a charge sheet for an offence under the PCA Act.
Further, I agree with the defendants that Mr Lazarides’ proceedings below involved abuse of process of at least two kinds, namely, the bringing of litigation for collateral purposes and the re-litigation of matters already decided.
Further again, Mr Lazarides was, in effect, if not in form, seeking relief under the PSIO Act against, in the case of the Council, a statutory body corporate[2] and in the case of the RSPCA, an incorporated society.[3] It is extremely doubtful that either the Council itself or the RSPCA itself is amenable to an application under the PSIO Act. Only a ‘person’ can be a respondent to an application under the PSIO Act.[4] It is true that s 38 of the Interpretation of Legislation Act 1984 (Vic) provides that, unless the contrary intention appears, ‘person’ includes a body politic or corporate as well as an individual. This may well be a case in which the contrary intention appears.[5] On the other hand, this particular point need not be decided in this case and I do not decide it.
[2]Local Government Act 1989 (Vic) s 5(2).
[3]Royal Society for the Prevention of Cruelty to Animals Act 1968 (Vic) s 3(a).
[4]Personal Safety Intervention Orders Act 2010 (Vic) s 4 (definition of ‘respondent’) (‘PSIO Act’).
[5]See Pearce and Geddes, Statutory Interpretation in Australia (LexisNexis, 8th ed, 2014) [6.55].
However, for the reasons summarised above and further elaborated below, each of the three proceedings in this Court will be dismissed.
Lazarides v Di Lorenzo & Anor: S CI 2018 00348
The first of the three applications for judicial review with which I need to deal stems from the first set of proceedings, purporting to be proceedings under the PSIO Act, commenced by Mr Lazarides in the Magistrates’ Court. Those proceedings were commenced on 5 January 2017. There were seven of them. In each proceeding, a different officer or past officer of the Council was named as the respondent. One of the respondents so named was the CEO of the Council, Ms Nerina Di Lorenzo, who is the first defendant to this application for judicial review.
Applications under the PSIO Act for personal safety intervention orders are required to be made in accordance with the provisions of div 1 of pt 3 of the PSIO Act. Among other things, they must include the information prescribed by the rules made under the Act.[6] The prescribed requirements include that the applicant state why an intervention order is needed, the reasons for seeking the order and the nature of the ‘prohibited behaviour’ or stalking alleged.[7] Applicants are directed by the standard form to give ‘a brief outline of each incident including the date and place where it happened’. In each of the seven applications lodged by Mr Lazarides, precisely the same wording was included in response to this direction. The wording was as follows:
THE RESP IS A MEMBER OF STAFF AT THE MORELAND CITY COUNCIL.
SHE HAS BEEN INVOLVED IN A CRIMINAL CONSPIRACY AGAINST ME FOR THE PAST 4 YEARS. THE MORELAND CITY COUNCIL HAS BEEN HARASSING ME CONTINUALLY FOR MANY YEARS. I HAVE HAD A LONG HISTORY OF HEALTH PROBLEMS DUE TO THE HARASSMENT.
ON THE 19 DECEMBER 2016 THE RESP SANCTIONED A MAN TO ATTEND WITH A LETTER. HE HAD NO ID AND WAS NOT DRIVING A COUNCIL CAR. THE CAR HAD A BROKEN BRAKE LIGHT.
I BELIEVE THIS HARASSMENT WILL CONTINUE AS IT HAS BEEN ONGOING FOR MANY YEARS.
[6]PSIO Act (n 4) s 13(1)(a).
[7]Magistrates’ Court (Personal Safety Intervention Orders) Rules 2011 (Vic) r 4.03(1).
Two of the applications were made against male respondents. However, even in those cases, the same wording (referring only to ‘she’) was used.
The matters came before Magistrate Keogh in the Magistrates’ Court at Broadmeadows on 17 February 2017. The records of the Magistrates’ Court indicate that, on that occasion, the Magistrate ordered Mr Lazarides to provide further and better particulars of his allegations, a list of witnesses, a summary of evidence and copies of all documents to be relied upon. The Magistrate warned Mr Lazarides to narrow the issues or risk having the matter struck out. The Magistrate also warned Mr Lazarides of the possibility of costs.[8]
[8]Court Book (‘CB’) 118, 142, 143.
It appears that, in response, Mr Lazarides prepared and filed a typed document of 22 pages divided into 14 parts.[9] The document contains a bewildering array of disjointed assertions, only some of which seem to relate to the Council.
[9]Being, apparently, the document reproduced at CB 42-63: see Affidavit of Michael Macnamara sworn 12 July 2018 [7], CB 118.
On 24 March 2017 the matters came on again before her Honour Magistrate Keogh. Ultimately, her Honour struck out all seven of the applications.[10]
[10]CB 118, 145.
On 7 April 2017, Mr Lazarides filed seven notices of appeal to the County Court of Victoria against the decisions of Magistrate Keogh. In each case the notice of appeal was in the same form, except for the name of the relevant respondent.
Appeals to the County Court against orders of the Magistrates’ Court in matters under the PSIO Act are governed by div 11 of pt 3 of the PSIO Act. Within that Division, s 96(1) provides that the appeal is by way of a rehearing. Section 97 provides that there is no appeal against the decision of the County Court.
There were preliminary hearings or directions hearings in the County Court on 2 May and 9 June 2017. The respondents sought to have the appeals struck out or alternatively to require the giving of further and better particulars. The applications to strike out were refused, but the Court ordered the parties to provide a list of witnesses and outlines of evidence. Otherwise the matters were adjourned for hearing on 13 November 2017.
On 13 November 2017, the appeals were called on before her Honour Judge Gaynor. Mr Lazarides appeared on his own behalf. A solicitor, Mr Macnamara, appeared on behalf of five of the respondents. Two of the respondents were no longer working with the Moreland City Council, had not provided instructions to Mr Macnamara and were not represented. The hearing proceeded into a second day, on 14 November 2017. I have read (amongst all of the other material of any possible relevance filed in these proceedings) the entire 145 page transcript of the hearing (which includes her Honour’s ruling given at the conclusion of the second day).[11]
[11]CB 161-305.
Consistently with the current practice in the County Court in appeals from the Magistrates’ Court in criminal proceedings, Judge Gaynor took the view that an ‘appeal by way of rehearing’ under s 96(1) of the PSIO Act was required to be conducted as a rehearing de novo, as distinct from any other kind of rehearing. It has not been suggested that her Honour was in error in that regard or, if she was, that any such error operated to the disadvantage of Mr Lazarides. I will assume, without deciding, that a rehearing de novo was required. The matter was treated as a fresh application for a final order made under s 61 of the PSIO Act.
Judge Gaynor listened with great patience to the oral submissions and evidence of Mr Lazarides. She stood the matter down several times at his request. There was also an overnight adjournment. Her Honour made every proper allowance for the physical and mental difficulties under which Mr Lazarides claimed to be labouring. She gave Mr Lazarides much more than a reasonable opportunity to put forward his case, even though he continually digressed into irrelevancies. Time and time again her Honour directed Mr Lazarides to the need to point to evidence that any of the individuals named as respondents had themselves (directly or indirectly) engaged in behaviour prohibited by the PSIO Act, such as harassment, property damage or interference or making a serious threat.[12]
[12]See PSIO Act (n 4) s 5.
In the end, her Honour ruled that Mr Lazarides had not proved, on the balance of probabilities, that any of the named individuals had engaged in any prohibited behaviour. Indeed, she observed that there was no evidence of any of them doing so. Accordingly, her Honour made the same decision as the Magistrate had made in each case, striking out each application for an intervention order.
Before this Court, Mr Lazarides has not made out any case of error of law on the face of the record or jurisdictional error on the part of Judge Gaynor.
In his handwritten originating motion, Mr Lazarides asserted that Judge Gaynor ‘admitted she didn’t read the court documents’. That is not borne out by the transcript. Rather, Judge Gaynor quite properly advised Mr Lazarides that the documents he had filed (which apparently were comprised mainly of the abovementioned ‘particulars’ that were originally filed in the Magistrates’ Court) did not constitute evidence. However, Judge Gaynor gave Mr Lazarides several opportunities to refresh his memory from his documents. There was no error on her Honour’s part in this regard.
Mr Lazarides further asserted in his originating motion that Judge Gaynor ‘admitted she couldn’t use her computer’. Again, this is simply not borne out by the transcript.
Next, it was said in the originating motion that her Honour ‘forgot to have the co-accused cross-examined’. That is apparently an allegation that the Judge should have compelled Ms Di Lorenzo to give evidence and be cross-examined. But, of course, Ms Di Lorenzo was under no obligation to give evidence. Moreover, her Honour found that Mr Lazarides had not adduced any relevant evidence against Ms Di Lorenzo.
Finally, there was an unparticularised allegation in the originating motion to the effect that the Council’s lawyer ‘repeatedly tried to mislead’ Magistrate Keogh, Judge Gaynor and two other Judges of the County Court. There is no basis for this suggestion in any of the material before this Court.
Mr Lazarides did not, either in his affidavit in support of 6 February 2018 (which was highly irregular in form) or in his submissions before me, provide or point to anything that could support any of the assertions in his originating motion.
Mr Lazarides acknowledged before me that he had received much assistance from this Court’s unrepresented litigants co-ordinator in preparing his case. He insisted before me that he did not want legal representation. He claimed to fully understand the limitations of judicial review. However, he was unable to point to any error of law on the face of the record or jurisdictional error on the part of Judge Gaynor.
That, alone, would be reason enough to dismiss proceeding no S CI 2018 00348 against Ms Di Lorenzo.
However, I accept also the first defendant’s submission that s 11 of the PSIO Act stood in the way of any success on the part of Mr Lazarides. Section 11 provides:
11. Act not to apply to certain conduct
This Act does not apply to conduct engaged in by a person performing official duties for the following purposes that, but for this section, would constitute grounds for making an order under this Act—
(a) the enforcement of the criminal law;
(b) the administration of any Act;
(c) the enforcement of a law imposing a pecuniary penalty;
(d) the execution of a warrant;
(e) the protection of the public revenue.
As mentioned above, there is every indication that, to the extent that Ms Di Lorenzo (or any of the other Council staff originally named) did or omitted to do anything of which Mr Lazarides could complain, their conduct amounted to conduct engaged in by a person performing official duties for one or more of the purposes set out in s 11 of the PSIO Act.
Further, I agree with the first defendant that Mr Lazarides’ original applications under the PSIO Act (and his appeals) involved abuse of process. Mr Lazarides had purposes that were collateral to the purposes of the PSIO Act. There was clear evidence before the County Court that Mr Lazarides made his original applications vexatiously, intending to annoy or cause trouble to the named individuals and the Council. The evidence indicated that on 19 December 2016 a person apparently acting on behalf of the Council handed Mr Lazarides an envelope containing a letter of that date. The circumstances and manner in which the letter came to be given to Mr Lazarides was a matter about which Mr Lazarides has made great complaint, although there is little or no substance in this complaint. The letter itself was a perfectly proper letter. A copy of it was shown to Mr Lazarides in evidence. After some prevarication, he acknowledged that the copy was authentic. The letter was signed by Ms Di Lorenzo as CEO of the Council. It was in the following terms:
Dear Mr Lazarides,
NOTICE OF FURTHER MEETING ARRANGMENTS
The purpose of this letter is to outline the communication channels available to you regarding the issue of abandoned vehicles at [number omitted for privacy] Cleve Road, Pascoe Vale.
Our officers have been working directly with you to try and resolve the issue. I understand that you have been wanting to escalate the matter and have attended our offices very frequently over the past few weeks, as well as leaving messages on my EA Leonie’s voice mail that have sometimes been profane or abusive.
I must ask you to stop attending Council’s offices and leaving these messages. A line of communication has been put in place between the Manager, David Kirsanovs, and yourself through your sister and I must ask you to work through this communication channel to resolve any issues. This will be the most effective way to make progress and to assist you in complying with the local law. I must also advise you that if you continue this behaviour, I may need to issue a further prohibition notice to you.
I hope that the communication channel that has been established allows the matter to be resolved and that you will respect the above instructions.
Later in the evening of 19 December 2016, in response to the receipt of the letter, Mr Lazarides left two voice mail messages directed to Ms Di Lorenzo. These were played during the hearing before Judge Gaynor and the transcript was tendered. They included foul, abusive and threatening language. The transcript included the following two paragraphs:
From what I can see here in your letter, now I think you’ve taken this course of action because I’ve threatened to take out intervention orders against you and Leonie just for fun to begin with. After that will come intervention orders for Sandra, Jew and all the – any other fuckin’ idiot that thinks that they’re going to discriminate against someone that’s not only a stage three patient, a stage three cancer patient, but also somebody that’s under the Mental Health Act.
And:
Now I warned you two last week that I would take intervention orders against you and Leonie just for fun to be with you. Just for fun. That’s why you’ve become alarmed and you’ve taken on this, that’s what, that, that’s why you’ve taken on this tone, because you have to protect yourself.
Those passages, and others like them in the voicemail messages, speak for themselves.
On the second day of the hearing before Judge Gaynor, Mr Lazarides called his sister, Rena Glennon, to give evidence. Ms Glennon said she was a teacher, with a Masters of Teaching, and was also a licensed builder. Her evidence tended to confirm that a perceived failure to register the relevant vehicles was amongst the reasons why the Council had moved or impounded vehicles associated with Mr Lazarides.[13] She expressed the view that her brother’s behaviour should have been treated more sympathetically by the Council and others on account of his mental and physical conditions. However, she expressly acknowledged that the officers of the Council were merely ‘doing their job’ in relation to matters between her brother and the Council in which she had intervened or acted as a channel of communication.[14]
[13]CB 278.
[14]CB 279.
Ms Glennon’s evidence further confirms that Mr Lazarides’ applications under the PSIO Act against the Council officers were legally and factually misconceived, and, indeed, an abuse of process.
Lazarides v Dr Elizabeth Walker & Anor: S CI 2018 00621
The second in time of Mr Lazarides’ applications for judicial review named Dr Elizabeth Walker, the Chief Executive Officer of the RSPCA, as the first defendant.
This matter relates back to a purported application for an intervention order commenced by Mr Lazarides in August 2017. At that time, the appeal to the County Court which ultimately came before Judge Gaynor (see above) was still pending.
In Mr Lazarides’ original application against Dr Walker, in response to the question why an intervention order was needed and to the invitation to give a brief outline of each incident, Mr Lazarides said:
THE RESP IS THE CEO OF THE RSPCA. I HAVE BEEN CHARGED BY THE RSPCA AND AM CONTESTING THESE CHARGES. THE RESPS ORGANISATION BROKE INTO MY ADDRESS AT [number omitted] CLEVE RD PASCOE VALE. THEY DID THIS WITHOUT A WARRANT. THE PROPERTY WAS LEFT UNSECURED AND MY DOG RUBY WAS LEFT RUNNING OUTSIDE, INCLUDING OVER THE ROAD. I BELIEVE THIS IS DAMAGING AND INTERFERING WITH MY PRIVATE PROPERTY. THEIR ALLEGATIONS AGAINST ME ARE FALSE. OVER A 10 YEAR PERIOD THE RESPS ORGANISATION HAS HARASSED ME.
On 23 August 2017 his Honour Magistrate Grinberg dismissed the application for a final order, noting that there was ‘No basis to proceed’.
By a notice of appeal dated 29 August 2017, Mr Lazarides appealed to the County Court.
On 5 December 2017, Mr Lazarides’ appeal was heard by her Honour Judge Hannan.[15] Once again, it was common ground before her Honour that the appeal should be conducted as a hearing de novo. Again, I have read the entire transcript of the hearing.
[15]It seems that there had been a prior directions hearing at some stage before her Honour Judge Hannan.
Like Judge Gaynor before her, Judge Hannan listened patiently to the oral submissions and oral evidence of Mr Lazarides. Again, her Honour did so notwithstanding the frequent digressions by Mr Lazarides into the irrelevant. Her Honour gave Mr Lazarides every opportunity to present his case.
At the end of the hearing, her Honour ruled. Her revised ruling was in the following terms:
The matter before me is an application pursuant to the Personal Safety Orders Intervention Act 2010. The applicant, Mr Bill Lazarides, seeks an order against Ms Walker in her capacity as CEO of the RSPCA.
This court is empowered to make an order under the legislation if the court is satisfied that the respondent, in this case Ms Walker, has committed prohibited behaviour against the affected person and is likely to continue to do so or do so again and that her conduct that is the prohibited behaviour would cause a reasonable person to fear for his or her safety or in the alternative that the respondent has stalked Mr Lazarides and is likely to continue to do so again and the respondent and the affected person are not family members and it is appropriate in all the circumstances of the case to make a final order.
It is important to have regard to the definition of ‘prohibited behaviour’ which is contained in s 5 of the PSIO Act. Section 5 of the PSIO Act defines ‘prohibited behaviour’ and says:
For the purposes of this Act, prohibited behaviour is assault or sexual assault or harassment or property damage or interference or making a serious threat.
Based on the evidence before me I am simply not satisfied that Ms Walker has engaged in prohibited behaviour, much less that she is likely to continue to do so or do so again. I am not satisfied that Ms Walker has stalked Mr Lazarides and is likely to continue to do so. There is simply no basis in law in which to make an order. It may well be that Mr Lazarides has other courses of action but an order under this legislation is not it and the order is refused.
Mr Lazarides commenced the present proceeding by originating motion on 15 January 2018. Once again, Mr Lazarides’ paperwork is quite unsatisfactory. It is handwritten, difficult to decipher and difficult to understand. Mr Lazarides’ various affidavits in support are not really proper affidavits at all.
Nevertheless, the first defendant filed written submissions on 16 November 2018 in which they grappled with Mr Lazarides’ written material so far as they could reasonably be expected to do.
I agree in substance with the first defendant’s written submissions in relation to each of the ‘grounds’ relied upon by Mr Lazarides.
Mr Lazarides’ first allegation in the originating motion is that Judge Hannan ‘didn’t read the Court documents’. I agree with the first defendant that no error is apparent in this respect from an examination of the transcript. As the first defendant submits, this ground may be based on a letter which Mr Lazarides received from the County Court registry about corresponding directly with the Court. In that letter it was said that certain correspondence that had been sent to the Court by Mr Lazarides was being returned to him.
There is only one passage in the transcript that might be of relevance to the present issue. At one stage[16] Mr Lazarides said that there were some medical records which indicated that he was not to be exposed to any stressors or any situations that would trigger anxiety. The Judge said that she accepted all of that. She indicated that she had only limited powers under the legislation. Mr Lazarides then said that he had already gone to the trouble of writing notes and other particulars. In response, Judge Hannan said that she did not read anything that was filed ‘ex parte’. She said that she was really careful about things like that. Mr Lazarides commented that this was okay and fair enough. Shortly thereafter, Judge Hannan gave Mr Lazarides an adjournment of five minutes to make sure that he had said everything he wanted to say.
[16]CB 19.
After the adjournment, Mr Lazarides returned to the witness box and gave additional evidence. Otherwise, Mr Lazarides did not refer to, or seek to tender, any documents.
There is no substance in ground 1.
In what has been dubbed ground 2, Mr Lazarides alleged that Judge Hannan did not address ‘3x solid gold & diamond mens Piaget mens watches’ and ‘Lexus and BMW tampered with and damaged’.
Mr Lazarides had given evidence about the allegedly missing watches and about the vehicles that had allegedly been tampered with and damaged. The evidence was quite unclear as to who, if anyone, had done the things complained of. In any event, as the first defendant submits, there is nothing in Mr Lazarides’ material to suggest that Judge Hannan did not consider Mr Lazarides’ evidence in this regard.
The third ‘ground’ raised in the originating motion relates to counsel who appeared in the matter before the County Court, Ms Upton. During the hearing before Judge Hannan, Mr Lazarides stated that he had seen Ms Upton on a previous occasion speaking with Mr Macnamara, who was the solicitor for the Moreland City Council in the matter to which I have already referred. The relevant exchange between Judge Hannan and Mr Lazarides is recorded in the transcript as follows:
Thank you. Thanks, Mr Lazarides. Is there any other factor you wanted to put-bring to my attention?
There are three more other things. Now, ma’am, I know how much a lot of judges admire Ms Upton but I saw something here two weeks ago when we were with Judge Gaynor in court room 5.2 whatever it was and she was discussing the case with Mr Macnamara while Judge Gaynor was in chambers.
Now look, I don’t need to know anything about that?
--- Mm, yeah, I know, I know, I know.
… because I just decide it based on what the evidence that I hear. What else is there?
--- I know. Alright. Um now I’ve mentioned the dog biscuits that were thrown ---
As the first defendant submits, Judge Hannan correctly did not accord any significance to Mr Lazarides’ evidence about the alleged discussion between the lawyers, because that evidence was of no significance. Again, this point is of no substance or merit.
Turning to the fourth ‘ground’, Mr Lazarides alleged that Judge Hannan did not consider that his house had been accessed without a warrant.
I agree with the first defendant that it is apparent from the transcript that Judge Hannan did pay due regard to what Mr Lazarides alleged in this respect. That appears from the following passages in the transcript:
Alright, so Mr Lazarides, let’s concentrate on what’s relevant, why you say that you need an intervention order because you say that the CEO has engaged in conduct which constitutes a proper application. You say it’s because she’s the CEO but you’re actually wanting to rely upon the actions of staff of the RSPCA in the execution of the warrant and leaving your house open?
--- That’s correct
…
I take it that what you’re saying is that they’re harassing you?
--- Mm, that’s right, that’s right.
…
Alright. We have to deal with that in a different venue?
--- Mm, yes, ma’am.
Is there anything else you want to say and just let me remind you of a few things that might prompt you to say something?
--- Mm, okay, of course, ma’am.
So prohibited behaviour under this legislation is assaulting, sexual assault, harassment, property damage or interference?
--- Yes, ma’am.
To that or making a serious threats. So which of those?
--- Yes, ma’am
do you say that you rely on? ---
…
No, I understand. Don’t tell me what you’ve told them?
--- You’ve gone – you know, you’ve gone beyond the scope of the warrant.
Yes? --- The warrant was for Fluffy Lazarides who’d been treated by two vets that week and the – the scope was not for Lucky, Diamond, Hercules or Ruby. Ruby they left behind. She’s the only one that needed attention ‘cause she had the hernia.
I understand all that?
--- and they’ve gone beyond the scope of that. What’s also worse is, ma’am, because – because they have me under coercion and duress to sign over the dogs under the Mental Health Act. We told Judge Falla recently at Broadmeadows when their – when their prosecutor was there, Daniel Bode, under the Mental Health Act Bill Lazarides and any – any patient under the Mental Health Act is not allowed to sign a legal document or a contract and I only signed under coercion and duress and that, you know that
Well that may lead to a civil action but it’s no part of this?
--- Okay. Okay, ma’am.
All right. If those are the factors - - -?---Most of them.
- - - you can return to – I don’t need to hear from Madam Prosecutor - - -?---Most of them.
Well when you say “Most of them” if there’s another factor tell me what the factor is?
After that exchange, Judge Hannan continued to hear Mr Lazarides’ evidence. I agree with the first defendant that there is nothing in Mr Lazarides’ material to suggest that her Honour did not consider all of Mr Lazarides’ evidence in this regard.
The fifth ‘ground’ is to the effect that Magistrate Grinberg had considered a related matter. This complaint goes nowhere. The matter was being heard de novo by Judge Hannan.
The sixth ‘ground’ appears to be to the effect that the Judge ordered Mr Lazarides out of court in order to have a private conversation with Ms Upton of counsel. That simply did not happen. After the main part of the case was over and the decision made and announced, Ms Upton on behalf of the first defendant applied for costs. Her Honour declined to make an order for costs. Then Mr Lazarides said ‘thank you, Judge Hannan, and Mietta. Thank you everybody.’ The Judge replied ‘Alright. Thank you, Ms Upton. 2.15.’
As the first defendant submits, Judge Hannan stated ‘2.15’ merely to adjourn the court for other matters to commence after lunch. Again, there is absolutely nothing in this point.
As the first defendant submits, neither the record of the hearing nor any of Mr Lazarides’ material suggests that Judge Hannan acted in a way that was irrational or unreasonable or illogical. Rather, her Honour patiently allowed Mr Lazarides time to state his position and sought to provide him with every opportunity to state his evidence and to assist him as a self-represented litigant. I further agree with the first defendant that, even if there was a breach of procedural fairness (which there was not), that would not have been material, because Mr Lazarides did not have a proper basis for relief.[17]
[17]Stead v State Government Insurance Commission (1986) 161 CLR 141, 145.
Again, there was no error of law on the face of the record nor jurisdictional error. This application for judicial review, also, must be dismissed.
Lazarides v Nerina Di Lorenzo & Anor: S CI 2018 02215
Mr Lazarides’ third application for judicial review overlaps in very large part, if not entirely, with his first application for judicial review dealt with above. The first defendant is the same, Ms Nerina Di Lorenzo. Again, Mr Lazarides is really targeting the Moreland City Council as a whole. The substantial overlap with the subject matter of the first application for judicial review is redolent of abuse of process.
In the present case, the purported application under the PSIO Act was issued in March 2018. It was endorsed as follows:
MY NAME IS BILL LAZARIDES AND I MAKE THIS APPLICATION FOR A PERSONAL SAFETY INTERVENTION ORDER AGAINST, NERINA DI LORENZO. THE RESPONDENT IS THE CEO OF MORELAND CITY COUNCIL.
I HAVE PREVIOUSLY APPLIED FOR AN INTERVENTION ORDER AGAINST THE RESPONDENT AND THIS WAS STRUCK OUT AT THE COUNTY COURT.
RESPONDENT WAS SERVED BY THE VICTORIAN SUPREME COURT 40 DAYS AGO. FIVE DAYS AFTER THE WINDSCREEN OF MY LEXUS SEDAN WAS SMASHED. 605 INCIDENTS OF CONTEMPT OF COURT TO DATE. RESPONDENT HAS BEEN ENGAGING IN PROHIBITED STALKING BEHAVIOUR. NO LIGHTS AT GAFFNEY STREET HOUSE, SINCE FEBRUARY 2017. AGL REPORT PROVIDED TO JUDGE GAYNOR AT VICTORIAN COUNTY COURT. THE REPSONDENT GAVE SANCTION TO AN UNIDENTIFIED MAN, STILL RUNNING AROUND THE STREETS, DAMAGING FENCING AND PROPERTY ARE PROHIBITED BEHAVIOURS. THE RESPONDENT STOLE MY LEXUS FROM GAFFNEY STREET, WITH A DISABLED STICKER ON IT THREE WEEKS AGO (FRIDAY OF LABOUR DAY LONG WEEKEND)
I CAN’T PAY MY BILLS OR POST LETTERS (LIVE MY LIFE)
MENTAL DISTRESS, MENTAL TRAUMA. GREEN BMW VANDALISED MID 2017 AND MY LEXUS ALSO VANDALISED ONE MONTH LATER.
I THINK THESE INCIDENTS WILL CONTINUE. JUDGE LISA HANNAN (VICORIAN COUNTY COURT) IGNORED MY OBSTRUCTION CHARGE REQUESTS. I WAS RIGHT.
CONTEMPT OF COURT. GO TO JAIL. A CORPORATION FACES STIFF FINES.
Once again, this is a document that really speaks for itself and demonstrates an impermissible attempt to re-litigate matters already decided against Mr Lazarides.
In any event, on 22 March 2018 her Honour Magistrate Burchill struck out the application.
Mr Lazarides appealed to the County Court. The appeal was listed before Judge Dean on 16 April 2018. After discussing the matter, Judge Dean also struck out the application for the intervention order.
On 13 June 2018 Mr Lazarides filed an originating motion seeking review of the order of Judge Dean. Again, the originating motion is not in proper form. However, the fact that Mr Lazarides is and has been misusing the PSIO Act is confirmed by what he says on page 6 his originating motion, namely that he seeks ‘a full intervention order, with conditions including Mr Bill Lazarides being a fully protected person for 99 years’.
As mentioned above, Mr Lazarides’ crusade pays no attention to s 11 of the PSIO Act. Of course, he cannot expect to be protected or immunised from the enforcement or administration of the law by public officials. There is an analogy with the principle that the Crown cannot disable itself from enforcing the law or be estopped from doing so. In A v Hayden[18] Mason J said that a promise by the Commonwealth not to disclose the identity of certain of its employees whom the State of Victoria wished to investigate for the commission of a criminal offence was a void and unenforceable promise, because it was at variance with a fundamental public policy – the public interest in the enforcement of the criminal law and in the administration of justice. Likewise, Brennan J said:[19]
But it is entirely clear that neither ASIS nor the Minister nor the executive government could confer authority upon any of the plaintiffs to commit an offence or immunity from prosecution for an offence once committed. The incapacity of the executive government to dispense its servants from obedience to laws made by Parliament is the cornerstone of a parliamentary democracy. A prerogative to dispense from the laws was exercised by medieval kings, but was a prerogative ‘replete with absurdity, and might be converted to the most dangerous purposes’: Chitty, Prerogatives of the Crown (1820), p. 95. James II was the last King to exercise the prerogative dispensing power… and the reaction to his doing so found expression in the Declaration of Right. It was there declared that ‘the pretended power of dispensing with laws, or the execution of laws, by regal authority, as it hath been assumed and exercised of late, is illegal.’
By the Bill of Rights, the power to dispense from any statute was abolished…. Whatever vestige of the dispensing power then remained, it is no more. The principle, as expressed in the Act of Settlement, is that all officers and ministers ought to serve the Crown according to the laws. It is expressed more appropriately for the present case by Griffith CJ in Clough v Leahy[20]:
If an act is unlawful - forbidden by law – a person who does it can claim no protection by saying that he acted under the authority of the Crown.
[18](1984) 156 CLR 532, 553.
[19]Ibid 580.
[20](1904) 2 CLR 139, 155-156.
In Churchill Fisheries Export Pty Ltd v Director-General of Conservation,[21] Beach J followed and applied A v Hayden, saying:[22]
The Crown has a duty to enforce the law. Whilst it may, as a matter of discretion or policy, decline to prosecute in a particular case or class of case, it cannot, as a matter of discretion or policy, put a particular individual beyond the reach of the law.
In the same way, no Court would make an order under the PSIO Act that would have the equivalent effect.[23]
[21][1990] VR 968.
[22]Ibid 983.
[23]Hogg and Monahan, Liability of the Crown (3rd ed, 2000, Carswell) p 33.
Accordingly, Mr Lazarides’ appeal to the County Court constituted by Judge Dean was doomed to fail. Judge Dean listened to Mr Lazarides for some time, albeit not for as long as Judge Gaynor or Judge Hannan had listened to him. Judge Dean ultimately said that he had read the application and that there was obviously no basis upon which the orders sought should be made. His Honour’s conclusion was inevitable.
Accordingly, Mr Lazarides’ application to this Court for judicial review must also fail. It will be dismissed.
Other matters raised by Mr Lazarides
From time to time in his documents and oral submissions, Mr Lazarides has made references to legislation relating to mental health (under which, apparently, he was detained for a period in the past), to legislation relating to equal opportunity and disability, discrimination, and to the doctrine of contempt of court. Plainly, Mr Lazarides’ purported proceedings under the PSIO Act were not the appropriate forum for the raising by him of complaints by reference to that legislation or those principles. In particular, Mr Lazarides seems to have been proceeding under the false impression that authorities such as the Council or the RSPCA could not take any steps adverse to him while he had on foot any (purported) application against them or their officers under the PSIO Act. It is to be hoped that any such impression that Mr Lazarides may have will now disappear.
Conclusion
Each of the three applications for judicial review will be dismissed.
I will hear the parties on a question of costs.
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