Lazarus v Independent Commission Against Corruption (No 2)

[2018] NSWSC 1613

Supreme Court

New South Wales

Medium Neutral Citation:

Lazarus v Independent Commission Against Corruption (No 2) [2018] NSWSC 1613

Hearing dates:

15 February 2018

Date of orders:

25 October 2018

Decision date:

25 October 2018

Jurisdiction:

Common Law

Before:

Walton J

Decision:

The Court makes the following orders and directions:

 

(1) The plaintiffs’ statement of claim filed 31 July 2017 be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW).

 

(2) The plaintiffs to pay the first defendant’s costs of the notice of motion filed 31 August 2017.

 

(3) The first defendant shall serve the plaintiffs on or before Tuesday, 30 October 2018 at 4pm with a copy of this judgment, the judgment in Lazarus v Independent Commission Against Corruption [2018] NSWSC 997, the supplementary written submissions of the first defendant and the short minutes of order dated 11 July 2018.

 

(4) The plaintiffs shall make any submissions as to the fourth prayer for relief in the notice of motion on or before Tuesday, 13 November 2018 at 4pm.

 (5) The Court will determine the remaining question as to costs on the papers based upon the supplementary written submissions of the first defendant and any written submissions received by the plaintiffs in accordance with these directions.

Catchwords:

CIVIL PROCEDURE – statement of claim dismissed – costs of the notice of motion – directions

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Lazarus v Independent Commission Against Corruption [2018] NSWSC 997

Category:

Procedural and other rulings

Parties:

Sandra Lazarus (first plaintiff / first respondent)
Michelle Lazarus (second plaintiff / second respondent)
Jessica Lazarus (third plaintiff / third respondent)
Independent Commission Against Corruption (first defendant / applicant on motion)
Michael Kane (second defendant)

Representation:

Counsel:
J Davidson (first defendant / applicant on motion)

  Solicitors:
Crown Solicitor’s Office (defendants / applicant on motion)

File Number(s):

2017/232535

Judgment

1. HIS HONOUR: By a statement of claim filed 31 July 2017 (“the statement of claim”), Sandra Lazarus (“the first plaintiff”), Michelle Lazarus (“the second plaintiff”) and Jessica Lazarus (“the third plaintiff”) (collectively, “the plaintiffs”) brought proceedings seeking the removal of reports in relation to investigations conducted by the Independent Commission Against Corruption (“the first defendant”) and the removal of references to that investigation, compensation, damages and other forms of relief against the first defendant and Michael Kane (“the second defendant”). An affidavit was sworn by the first plaintiff dated 31 July 2017 supporting and verifying the statement of claim (to which there were 17 annexures).

2. By a notice of motion filed 31 August 2017 (“the notice of motion”), the first defendant sought the following orders:

1. The plaintiffs’ Statement of Claim filed 31 July 2017 be dismissed pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2005.

2. In the alternative to order (1), the plaintiffs’ Statement of Claim filed 31 July 2017 be struck out pursuant to Rule 14.28 of the Uniform Civil Procedure Rules 2005.

3. The plaintiffs pay the costs of this Motion.

4. The plaintiffs pay the first defendant’s costs of the proceedings.

5. Such further or other order as the Court may deem fit.

3. The Court delivered judgment on 28 June 2018, finding it was appropriate that summary dismissal be granted in the circumstances: Lazarus v Independent Commission Against Corruption [2018] NSWSC 997 (“Lazarus v ICAC No 1”).

4. The Court made the following statements, findings and directions at [81]-[84]:

[81] For the foregoing reasons, I consider that the statement of claim by the plaintiffs discloses no reasonable cause of action. It is not appropriate to permit a re-pleading of the statement of claim as the pleadings are not amendable to rectification in that way.

[82] In the circumstances, it is appropriate to grant the first prayer for relief of the notice of motion. The first defendant should also have an order for costs in relation to the motion (per the third prayer for relief). It is unnecessary to rule on the second prayer for relief.

[83] Submissions were not received with respect to the fourth prayer for relief. It would be appropriate for a further submission to be advanced in that respect by the first defendant indicating whether it was appropriate to hear the plaintiff in relation to that prayer. That consideration can await the making of orders with respect to the first and third prayers for relief of the notice of motion (with any further submissions filed within 14 days of the making of those orders). Costs in that respect are reserved.

DIRECTION

[84] The first defendant shall bring in short minutes of order reflecting this judgment within 14 days of the publication of this judgment.

5. In response to those directions, the first defendant provided short minutes of order on 12 July 2018, in the following terms:

1. The plaintiffs’ Statement of Claim filed 31 July 2017 be dismissed pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2005.

2. The plaintiffs to pay the first defendant’s costs of the motion filed 31 August 2017.

3. The plaintiffs to pay the first defendant’s costs of the proceedings.

6. The first defendant also provided supplementary submissions in accordance with the directions of the Court dealing with whether the plaintiffs should be given an opportunity to make submissions on costs of the proceedings (being the fourth prayer for relief) and as to the merits of that application for costs.

7. As to the first consideration, the first defendant made the following submissions:

2. The first defendant considers that it would be open to the Court not to provide the plaintiffs with any further opportunity to make submissions. The plaintiffs were on notice both that costs of the proceedings were sought (by the terms of the notice of motion itself) and that the matter was to be heard on 15 February 2018 (see the judgment at [6]). They may be said to have elected not to appear and to make no submissions in the matter.

3. However, the plaintiffs have been appearing unrepresented in the matter and, for an abundance of caution, the first defendant would have no objection to them being given 14 days to put on short written submissions as to costs, with the matter then being determined on the papers. The first defendant would oppose any extension of that 14 day period.

8. Bearing in mind those submissions, the Court shall make directions affording the plaintiffs the opportunity to make submissions confined to the fourth prayer for relief, namely, whether the first defendant should receive costs of the proceedings. The Court makes the orders proposed in terms of the first and second paragraphs of the aforementioned short minutes of order.

ORDERS AND DIRECTIONS

9. The Court makes the following orders and directions:

1. The plaintiffs’ statement of claim filed 31 July 2017 be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW).

2. The plaintiffs to pay the first defendant’s costs of the notice of motion filed 31 August 2017.

3. The first defendant shall serve the plaintiffs on or before Tuesday, 30 October 2018 at 4pm with a copy of this judgment, the judgment in Lazarus v Independent Commission Against Corruption [2018] NSWSC 997, the supplementary written submissions of the first defendant and the short minutes of order dated 11 July 2018.

4. The plaintiffs shall make any submissions as to the fourth prayer for relief in the notice of motion on or before Tuesday, 13 November 2018 at 4pm.

5. The Court will determine the remaining question as to costs on the papers based upon the supplementary written submissions of the first defendant and any written submissions received by the plaintiffs in accordance with these directions.

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Decision last updated: 26 October 2018