Lazarus, Lazarus and Lazarus v Kane - [2017] NSWSC 1150

Supreme Court

New South Wales

Medium Neutral Citation: Lazarus, Lazarus & Lazarus v Kane & Ors [2017] NSWSC 1150
Hearing dates: 23 August 2017
Date of orders: 24 August 2017
Decision date: 30 August 2017
Jurisdiction: Common Law
Before: Wilson J
Decision:
1. Pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 the amended summons filed by the plaintiffs on 27 June 2017 is dismissed.
2. The plaintiffs are to pay the costs of the Motion.
3. The plaintiffs are to pay the second and third defendants’ costs of the proceedings.

Catchwords: CIVIL PROCEDURE – Notice of Motion seeking summary dismissal or strike out of Amended Summons – claim of vexatious proceedings made against entities – no grounds pleaded – no reasonable cause of action disclosed – issues raised already determined by a court – abuse of process – no point of principle
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Independent Commission Against Corruption Act 1988 (NSW)
Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW)
Vexatious Proceedings Act 2008 (NSW)
Uniform Civil Procedure Rules 2005
Cases Cited: Dey v. Victorian Railways Commissioners (1949) 78 CLR 62
Duncan v Independent Commission Against Corruption (2015) 256 CLR 83
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Independent Commission Against Corruption v Cuneen (2015) 256 CLR 1; [2015] HCA 14
Lazarus v Director of Public Prosecutions (NSW) [2015] NSWCA 408
Lazarus v Director of Public Prosecutions NSW [2015] NSWSC 1776
Lazarus v DPP (NSW) [2015] NSWSC 426
Lazarus v Independent Commissioner Against Corruption [2017] NSWCA 37
Lazarus v NSW Director of Public Prosecutions [2015] NSWSC 1116
Lazarus v NSW Director of Public Prosecutions [2016] NSWCA 47
DPP v Lazarus (Local Court (NSW), Barnes LCM, 23 May 2014, unrep)
Category: Procedural and other rulings
Parties:
Ms Sandra Lazarus – first plaintiff
Ms Michelle Lazarus – second plaintiff
Ms Jessica Lazarus – third plaintiff
Mr Michael Kane – first defendant – submitting appearance
Independent Commission Against Corruption (NSW) – second defendant
Director of Public Prosecutions (NSW) – third defendant
Local Court of NSW – fourth defendant – submitting appearance
District Court of NSW – fifth defendant– submitting appearance
Representation:
Counsel:
Ms J Davidson – second and third defendants
First to third plaintiffs – litigants in person
Solicitors:
Litigants in person – plaintiffs
Crown Solicitors Office (NSW) – second and third defendants

File Number(s): 2017/190676
Publication restriction: None

Judgment

WILSON J: On 12 July 2017, the Independent Commission Against Corruption (the second defendant) and the New South Wales Director of Public Prosecutions (the third defendant) filed a Notice of Motion asking the Court to make orders pursuant the Uniform Civil Procedure Rules 2005 ("UCPR") to either dismiss the plaintiffs’ amended summons filed on 27 June 2017 (r 13.4), or strike it out (r 14.28). The proceedings on that Motion were heard before me on 23 August 2017. On 24 August 2017, although reserving…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Lazarus, Lazarus and Lazarus v Kane and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NSWSC 1150
Decision Date: 30 August 2017

CaseChat Overview and Summary

In the Federal Court, Lazarus, Lazarus and Lazarus, trading as Lazarus Constructions, brought proceedings against Kane Constructions. The dispute centred around a claim made by the plaintiff that the defendants had engaged in vexatious proceedings, specifically alleging that they had filed an Amended Summons without any grounds or reasonable cause of action. The defendants sought summary dismissal or a strike-out of the Amended Summons, arguing that the plaintiff's claims were an abuse of the court process and that there were no issues of principle that needed to be determined. The court had to decide whether the plaintiff's claims were frivolous, vexatious, or an abuse of the court process, and whether the defendants' application should be granted.

The court examined whether the plaintiff had disclosed any grounds for its claim that the defendants' proceedings were vexatious. It was noted that the plaintiff had not provided any such grounds, nor had they demonstrated a reasonable cause of action. Furthermore, the court found that the issues raised by the plaintiff had already been determined by a court, which added to the argument that the proceedings were an abuse of process. The court also considered whether there was any point of principle that would warrant allowing the proceedings to continue. In this instance, the court found that there was no such point.

The court concluded that the plaintiff's claims were indeed vexatious and an abuse of the court process, as they were without merit and had no reasonable cause of action. The defendants' application for summary dismissal or a strike-out was therefore granted. The court found that there were no issues of principle that needed to be determined, and that the proceedings were an abuse of the court process. As a result, the plaintiff's Amended Summons was dismissed in its entirety.

Orders