Lazarus v Independent Commission Against Corruption

[2018] NSWCA 262

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Lazarus v Independent Commission Against Corruption [2018] NSWCA 262

Hearing dates:

5, 7 November 2018

Date of orders:

08 November 2018

Decision date:

08 November 2018

Before:

Meagher JA

Decision:

1. Refuse the application to vacate the hearing date.
2. Applicants to pay the second and third respondents’ costs of that application.

Catchwords:

CIVIL PROCEDURE – application to vacate hearing date to permit counsel to provide merit advice in connection with application for Legal Aid – application to vacate hearing refused

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 17, 18, 20
Supreme Court Act 1970 (NSW), s 69C

Cases Cited:

Lazarus v Independent Commission Against Corruption [2018] NSWCA 66
Independent Commission Against Corruption [2017] NSWCA 37
Lazarus v Director of Public Prosecutions [2016] NSWCA 47

Category:

Procedural and other rulings

Parties:

Sandra Lazarus (First applicant)
Michelle Lazarus (Second applicant)

Representation:

Counsel:

 

PD Lange (Applicants)

 

Solicitors:

  Leigh Johnson Lawyers (Applicants)
Crown Solicitors Office (Second and third respondent)

File Number(s):

2017/213601

Publication restriction:

N/A

Judgment

1. The applicants (Sandra Lazarus and Michelle Lazarus) seek judicial review of orders of the District Court made following their separate appeals from decisions of the Local Court under Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act), s 11. Those applications are presently listed for hearing for two days commencing 22 November 2018. The proceedings were listed on 5 November 2018 to enable the applicants to make foreshadowed applications to vacate that hearing date so as to give counsel nominated by the Legal Aid Commission, Mr PD Lange, the opportunity to complete a merit advice in support of their application for Legal Aid made on 29 January 2018.

2. The judicial review applications were first fixed for hearing on 9 April 2018. That hearing date was vacated in the circumstances recorded by White JA in Lazarus v Independent Commission Against Corruption [2018] NSWCA 66. As his Honour noted at [22], by March 2018 there had been an “extraordinary series of delays” in relation to the final disposal of the underlying criminal proceedings against the applicants involving multiple applications in the District Court, the Supreme Court, and in this Court. That procedural history is summarised by Leeming JA in Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37. One consequence of any delay in the determination of these proceedings is that the sentence of imprisonment initially imposed on Sandra Lazarus by the Local Court on 27 April 2015, and subsequently varied by the District Court on 12 December 2017, remains unserved and the subject of a stay of execution until the proceedings are finally determined: Supreme Court Act 1970 (NSW), s 69C(1), (2)(a) and (4). Of course the ultimate outcome of the success of the present proceedings could be that the applicants’ convictions are set aside.

3. On 5 November 2018 initially Ms Leigh Johnson and later Mr PD Lange appeared for the applicants. In support…