Lazarus & Anor v Commonwealth of Australia & Ors

[2022] HCATrans 168

[2022] HCATrans 168

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S296 of 2018

B e t w e e n -

SANDRA LAZARUS

First Plaintiff

JESSICA LAZARUS

Second Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

GOVERNOR GENERAL OF THE COMMONWEALTH OF AUSTRALIA

Second Defendant

PRIME MINISTER OF AUSTRALIA

Third Defendant

COMMONWEALTH ATTORNEY GENERAL

Fourth Defendant

STATE OF NEW SOUTH WALES

Fifth Defendant

STATE OF NEW SOUTH WALES ATTORNEY GENERAL

Sixth Defendant

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON THURSDAY, 13 OCTOBER 2022, AT 2.01 PM

Copyright in the High Court of Australia

____________________

HIS HONOUR: I order that this proceeding be dismissed for want of prosecution pursuant to Rule 28.01.1(a) of the High Court Rules. I publish my reasons and direct that those reasons be incorporated into the transcript.

The plaintiffs filed a writ of summons against the defendants on 16 November 2018. The last step taken by the plaintiffs in the proceeding was the filing of a summons for directions on 24 December 2018. On 4 February 2019, the first, second, third and fourth defendants filed a summons seeking an order pursuant to r 28.01.2(a) or (b) of the High Court Rules 2004 (Cth) that the proceeding be stayed as against them because it did not disclose a cause of action or was frivolous or vexatious. No directions or orders were made on either summons.

On 14 September 2022, a Deputy Registrar of this Court sent an email to the plaintiffs’ solicitors noting that the proceeding had not been progressed or discontinued.  The Deputy Registrar further noted that the passage of time since the

last step was taken by a party exceeded three years. Rule 4.03.2 of the High Court Rules provides that, in those circumstances, no step shall be taken in the proceeding without the leave of the Court or a Justice. The plaintiffs’ solicitors were advised that, unless a formal application by the plaintiffs for leave to proceed in accordance with r 4.03.2 of the High Court Rules was filed and served on or before 28 September 2022, the proceeding would be referred to a Justice for consideration as to whether orders under r 28.01 of the High Court Rules should be made. No such application for leave has been made. Indeed, there has been no reply to the Deputy Registrar’s communication.

Under r 28.01.1(a) of the High Court Rules, relevantly, a Justice may order that a proceeding be dismissed for want of prosecution if a plaintiff has not prosecuted a proceeding with due diligence. It is clear that the discretion conferred by r 28.01.1(a) has been enlivened in that no step has been taken by the plaintiffs to move the proceeding forward for more than three years, and no explanation has been forthcoming to suggest that there is a good reason why this gross inaction could be in any way consistent with “due diligence” on the plaintiffs’ part. I note that r 28.01.3(b) provides relevantly that a Justice may make an order under r 28.01.1 of the Justice’s own motion after notice has been given by the Registrar to each plaintiff, and such notice has been given.

The discretion conferred by r 28.01.1(a) having arisen, I am satisfied that the discretion is appropriately exercised by making an order that the proceeding be dismissed for want of prosecution. In this regard, there is no reason to think that the plaintiffs are now ready, willing and able to prosecute the proceeding and to make an application for leave in that regard. Further, there has been no suggestion by the plaintiffs, and nor is there any basis in the material filed by them for a concern, that the plaintiffs would suffer substantial prejudice by the termination of the proceeding.

Accordingly, I order that this proceeding be dismissed for want of prosecution pursuant to r 28.01.1(a) of the High Court Rules.

AT 2.02 PM THE MATTER WAS CONCLUDED