Lazarus v Independent Commission Against Corruption [2019] NSWCA 100
Hearing dates:
22 and 23 November 2018
Date of orders:
08 May 2019
Decision date:
08 May 2019
Before:
Basten JA at [1]; Meagher JA at [2]; Sackville AJA at [76]
Decision:
(1) Dismiss the applicants’ new further amended summons.
(2) Dismiss the applicants’ notice of motion filed 19 November 2018.
(3) Dismiss the applicants’ application to amend the new further amended summons to include an order made on 18 August 2018.
(4) Dismiss the second and third respondents’ notice of motion filed 9 November 2018.
(5) Applicants pay the second and third respondents’ costs of the proceedings.
Catchwords:
JUDICIAL REVIEW – supervisory jurisdiction – orders of District Court on appeal from Local Court – appeal against conviction – where appellant failed to appear and appeal summarily dismissed – whether jurisdictional error
JUDICIAL REVIEW – supervisory jurisdiction – orders of District Court on appeal from Local Court – appeal against sentence – where judge correctly understood extent of available evidence – where evidence from trial voluminous – where parties directed to put material relied on before the Court – where parties had sufficient opportunity to do so – whether jurisdictional error
CIVIL PROCEDURE – recusal application – apprehended bias – where judge expressed preliminary view as to prospects of success of judicial review proceeding in interlocutory application to vacate hearing date – no basis for reasonable apprehension of bias – no question of principle
STATUTORY INTERPRETATION – statute assumes existence of power – necessary implication – power impliedly conferred
[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.
Continue reading Lazarus v Independent Commission Against Corruption
Sign in free to access the full text
Details
AGLC
Lazarus v Independent Commission Against Corruption [2019] NSWCA 100
Case
[2019] NSWCA 100
Decision Date
CaseChat Overview and Summary
The applicants, Lazarus and others, sought judicial review of decisions made by the District Court of New South Wales. The primary dispute concerned the District Court's summary dismissal of an appeal against conviction and its handling of an appeal against sentence, both originating from the Local Court. The applicants also sought the recusal of the judge presiding over the judicial review proceedings due to apprehended bias. The matter was heard by Basten and Meagher JJA and Sackville AJA.
The court was required to determine whether the District Court had committed jurisdictional error in summarily dismissing the appeal against conviction when the appellant failed to appear. Further, the court had to consider whether jurisdictional error occurred in the District Court's handling of the appeal against sentence, particularly in relation to the extent of evidence considered and the opportunity provided to the parties to present their material. Finally, the court had to assess whether there was a reasonable apprehension of bias justifying the recusal of the judge.
The Court of Appeal found no jurisdictional error in the District Court's decisions. Regarding the appeal against conviction, the court held that the District Court had the power to summarily dismiss an appeal where the appellant failed to appear, and this power was not exercised in a manner that constituted jurisdictional error. On the appeal against sentence, the court concluded that the judge had correctly understood the available evidence and that the parties had been afforded sufficient opportunity to present their material. The recusal application was also dismissed, with the court finding no reasonable apprehension of bias based on the judge's preliminary views expressed in an interlocutory application.
The applications made by the applicants were dismissed. This included their summons, a notice of motion filed on 19 November 2018, and an application to amend their summons to include an order made on 18 August 2018. The notices of motion filed by the second and third respondents were also dismissed. The applicants were ordered to pay the costs of the second and third respondents.
Orders
Orders of the court
(1) Dismiss the applicants’ new further amended summons.
(2) Dismiss the applicants’ notice of motion filed 19 November 2018.
(3) Dismiss the applicants’ application to amend the new further amended summons to include an order made on 18 August 2018.
(4) Dismiss the second and third respondents’ notice of motion filed 9 November 2018.
(5) Applicants pay the second and third respondents’ costs of the proceedings.