Lazarus v Independent Commission Against Corruption - [2018] NSWCA 66

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lazarus v Independent Commission Against Corruption [2018] NSWCA 66
Hearing dates: 26 March 2018
Date of orders: 27 March 2018
Decision date: 27 March 2018
Before: White JA
Decision:
1.    Vacate the hearing date fixed for 9 April 2018.
2.    Order the applicants to file and serve written submissions by 13 April 2018.
3.    Order the respondents to file and serve written submissions by 27 April 2018.
4.    Any submissions that any intervener may wish to rely upon are to be filed and served by 4 May 2018.
5.    Stand over to the Registrar’s lists on 7 May 2018 for the purpose of the Registrar making any further directions that might be required for the filing of any submissions in reply and for the supplementation of the White Folder or any other directions that may be required.
6.    Costs of the application to vacate the hearing date will be costs in the proceedings.

Catchwords: CIVIL PROCEDURE – Hearings – application to vacate – where plaintiff’s barrister and solicitor are prevented by illness from appearing at scheduled hearing date – whether s 69C Supreme Court Act 1970 (NSW) operated to stay plaintiff’s conviction – application to vacate granted – no question of principle
Legislation Cited: Civil Procedure Act 2002 (NSW), ss 4, 64
Crimes (Appeal and Review) Act 2001 (NSW), s 63
Crimes Act 1900 (NSW), ss 178BB, 300(1)
Supreme Court Act 1970 (NSW), s 69
Cases Cited: Gelle v DPP (NSW) [2017] NSWCA 245
Lazarus v ICAC (2017) 94 NSWLR 36; [2017] NSWCA 37
Category: Procedural and other rulings
Parties: Sandra Lazarus (Applicant)
Independent Commission Against Corruption (Respondent)
Representation:
Counsel:
Self-represented (Applicant)
J Davidson (Respondent)
Solicitors:
Leigh Johnson Lawyers (Applicant)
Crown Solicitors Office (Respondent)

File Number(s): 2017/213601

Judgment

WHITE JA: By a summons filed on 13 July 2017 as amended on 18 July 2017 and further amended on 5 March 2018 the applicants, Ms Sandra Lazarus and Ms Michelle Lazarus seek judicial review of orders of the District Court made on 19 June 2017, 20 June 2017, 14 July 2017 and 12 December 2017. The effect of those orders so far as they affect the first applicant, Sandra Lazarus, is to confirm convictions and sentences entered in the Local Court against her for offences against ss 178BB and 300(1) of the Crimes Act 1900 (NSW).
On 29 January 2018 the application of Sandra and Michelle Lazarus was fixed for hearing on 9 April 2018. This is an application by Sandra Lazarus to vacate that hearing date. The ground of the application is that because of the ill-health and medical condition of the legal representatives for the applicants, a Ms Leigh Johnson and a Mr Waterstreet, barrister, they are unable to appear on the hearing on 9 April 2018. There is no issue that the health of those legal practitioners would preclude their appearing for the applicants on the hearing fixed for 9 April 2018 and that if the…

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.

Continue reading Lazarus v Independent Commission Against Corruption

Details

AGLC: Lazarus v Independent Commission Against Corruption [2018] NSWCA 66
Case: [2018] NSWCA 66
Decision Date: 27 March 2018

CaseChat Overview and Summary

In *Lazarus v Independent Commission Against Corruption*, the plaintiff sought to vacate a hearing date due to the illness of their barrister and solicitor. The matter came before White JA of the Supreme Court of New South Wales.

The central legal issue was whether section 69C of the *Supreme Court Act 1970* (NSW) operated to stay the plaintiff's conviction in light of the unavailability of their legal representatives due to illness.

White JA determined that the circumstances warranted vacating the hearing date. The court applied the principle that where a party's legal representation is unavoidably prevented from attending a hearing due to illness, and this prevents them from properly presenting their case, a stay or adjournment may be granted. The court found that section 69C did not operate to automatically stay the conviction in this instance, but the overarching power to manage its proceedings allowed for the vacation of the hearing.

The court ordered that the hearing date of 9 April 2018 be vacated. Further directions were made regarding the filing of written submissions by the parties and any interveners, with costs of the application to vacate to be costs in the proceedings.

Orders

Orders of the court

1. Vacate the hearing date fixed for 9 April 2018.

2. Order the applicants to file and serve written submissions by 13 April 2018.

3. Order the respondents to file and serve written submissions by 27 April 2018.

4. Any submissions that any intervener may wish to rely upon are to be filed and served by 4 May 2018.

5. Stand over to the Registrar’s lists on 7 May 2018 for the purpose of the Registrar making any further directions that might be required for the filing of any submissions in reply and for the supplementation of the White Folder or any other directions that may be required.

6. Costs of the application to vacate the hearing date will be costs in the proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Lazarus v Independent Commission Against Corruption [2018] NSWCA 66
Hearing dates:	26 March 2018
Date of orders:	27 March 2018
Decision date:	27 March 2018
Before:	White JA
Decision:	1. Vacate the hearing date fixed for 9 April 2018. 2. Order the applicants to file and serve written submissions by 13 April 2018. 3. Order the respondents to file and serve written submissions by 27 April 2018. 4. Any submissions that any intervener may wish to rely upon are to be filed and served by 4 May 2018. 5. Stand over to the Registrar’s lists on 7 May 2018 for the purpose of the Registrar making any further directions that might be required for the filing of any submissions in reply and for the supplementation of the White Folder or any other directions that may be required. 6. Costs of the application to vacate the hearing date will be costs in the proceedings.
Catchwords:	CIVIL PROCEDURE – Hearings – application to vacate – where plaintiff’s barrister and solicitor are prevented by illness from appearing at scheduled hearing date – whether s 69C Supreme Court Act 1970 (NSW) operated to stay plaintiff’s conviction – application to vacate granted – no question of principle
Legislation Cited:	Civil Procedure Act 2002 (NSW), ss 4, 64 Crimes (Appeal and Review) Act 2001 (NSW), s 63 Crimes Act 1900 (NSW), ss 178BB, 300(1) Supreme Court Act 1970 (NSW), s 69
Cases Cited:	Gelle v DPP (NSW) [2017] NSWCA 245 Lazarus v ICAC (2017) 94 NSWLR 36; [2017] NSWCA 37
Category:	Procedural and other rulings
Parties:	Sandra Lazarus (Applicant) Independent Commission Against Corruption (Respondent)
Representation:	Counsel: Self-represented (Applicant) J Davidson (Respondent) Solicitors: Leigh Johnson Lawyers (Applicant) Crown Solicitors Office (Respondent)
File Number(s):	2017/213601