Lazarus v Kane - [2019] NSWCA 194

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Lazarus v Kane [2019] NSWCA 194
Hearing dates: 6 August 2019
Decision date: 07 August 2019
Before: Bell P at [1];
Basten JA at [3];
Meagher JA at [31]
Decision:
(1) Dismiss the amended summons filed on 17 June 2019.
(2) Order that the applicant pay the costs of the Director of Public Prosecutions.
Catchwords:
CRIMINAL PROCEDURE – judicial review – offender convicted and sentenced to imprisonment – challenge to issue of warrants of commitment – custodial sentence stayed pending judicial review – Court of Appeal order that warrants be amended – further judicial review of “decision” to amend warrants

CIVIL PROCEDURE – judicial review – orders in nature of certiorari – dismissal of proceedings – frivolous or vexatious – amendment of warrants not reviewable – rights affected by final order of court, not by steps taken to implement order
PRACTICE AND PROCEDURE – judicial review – stay of execution of custodial sentence – whether stay provided in Supreme Court Act 1970 (NSW), s 69C engaged
Legislation Cited:
Constitution, Ch III
Crimes (Appeal and Review) Act 2001 (NSW), Pt 7
Crimes (Sentencing Procedure) Act 1999 (NSW) s 43
Crimes Act 1900 (NSW), ss 178BB, 300
Judiciary Act 1903 (Cth), s 78B
Supreme Court Act 1970 (NSW), ss 69, 69C
Uniform Civil Procedure Rules 2005 (NSW), r 13.4
Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10
Australian Competition and Consumer Commission v C G Berbatis Pty Ltd [1999] FCA 1151; 95 FCR 292; 167 ALR 303
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44
Lazarus v Director of Public Prosecutions (NSW) [2019] NSWCA 125
Lazarus v Independent Commission Against Corruption [2019] NSWCA 100
Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252; [2019] HCA 3
Potier v State of New South Wales [2014] NSWCA 359
Category: Principal judgment
Parties: Sandra Lazarus (Applicant)
Michael Kane (First Respondent)
Independent Commission Against Corruption (Second Respondent)
Director of Public Prosecutions (Third Respondent)
District Court of New South Wales (Fourth Respondent)
Representation:
Counsel:
No appearance for applicant
Ms J E Davidson/Mr D J Reynolds (Third Respondent)
Submitting appearances (First, Second and Fourth Respondents)
Solicitors:
Leigh Johnson Lawyers (Applicant)
Crown Solicitor’s Office (Respondents)

File Number(s): 2019/191770

Judgment

BELL P: I have had the benefit of reading in draft the reasons for judgment of Basten JA with which I agree. I also agree with the orders his Honour proposes.
The non-compliance by Ms Lazarus with the direction to file s 78B Notices under the Judiciary Act 1903 (Cth), as referred to at [8] below, does not stand in the way of the orders. As French J (as he then was) said in Australian Competition and Consumer Commission v C G Berbatis Pty Ltd:[1]

“[14] Section 78B does not impose on the court a duty not to proceed pending the issue of a notice no…

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 Kane

Details

AGLC: Lazarus v Kane [2019] NSWCA 194
Case: [2019] NSWCA 194
Decision Date: 07 August 2019

CaseChat Overview and Summary

The applicant, Lazarus, sought judicial review of a decision by the Court of Appeal to amend warrants of commitment. Lazarus had been convicted and sentenced to imprisonment, but the custodial sentence was stayed pending an earlier judicial review. The Court of Appeal had ordered that the warrants be amended, and Lazarus then sought to challenge this amendment through further judicial review. The respondent was the Director of Public Prosecutions.

The central legal issue before the Court of Appeal was whether the Court of Appeal's decision to amend the warrants of commitment constituted a "decision" amenable to judicial review. Specifically, the court had to determine if the amendment of the warrants, which were steps taken to implement a final order of the court, could be challenged by way of orders in the nature of certiorari, or if such proceedings were frivolous or vexatious. The court also considered whether a stay of execution of a custodial sentence, as provided for in section 69C of the *Supreme Court Act 1970* (NSW), was engaged by the circumstances.

The Court of Appeal reasoned that the rights of an individual are affected by the final order of the court, not by the subsequent steps taken to implement that order. The amendment of the warrants was a procedural step to give effect to the Court of Appeal's earlier decision. Therefore, the court held that the amendment of the warrants was not a reviewable "decision" in the context of judicial review. The court found that the proceedings were frivolous or vexatious.

Consequently, the Court of Appeal ordered the dismissal of the amended summons filed on 17 June 2019 and ordered that the applicant pay the costs of the Director of Public Prosecutions.

Orders

Orders of the court

(1) Dismiss the amended summons filed on 17 June 2019.

(2) Order that the applicant pay the costs of the Director of Public Prosecutions.

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 Kane [2019] NSWCA 194
Hearing dates:	6 August 2019
Decision date:	07 August 2019
Before:	Bell P at [1]; Basten JA at [3]; Meagher JA at [31]
Decision:	(1) Dismiss the amended summons filed on 17 June 2019. (2) Order that the applicant pay the costs of the Director of Public Prosecutions.
Catchwords:	CRIMINAL PROCEDURE – judicial review – offender convicted and sentenced to imprisonment – challenge to issue of warrants of commitment – custodial sentence stayed pending judicial review – Court of Appeal order that warrants be amended – further judicial review of “decision” to amend warrants CIVIL PROCEDURE – judicial review – orders in nature of certiorari – dismissal of proceedings – frivolous or vexatious – amendment of warrants not reviewable – rights affected by final order of court, not by steps taken to implement order PRACTICE AND PROCEDURE – judicial review – stay of execution of custodial sentence – whether stay provided in Supreme Court Act 1970 (NSW), s 69C engaged
Legislation Cited:	Constitution, Ch III Crimes (Appeal and Review) Act 2001 (NSW), Pt 7 Crimes (Sentencing Procedure) Act 1999 (NSW) s 43 Crimes Act 1900 (NSW), ss 178BB, 300 Judiciary Act 1903 (Cth), s 78B Supreme Court Act 1970 (NSW), ss 69, 69C Uniform Civil Procedure Rules 2005 (NSW), r 13.4
Cases Cited:	Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 Australian Competition and Consumer Commission v C G Berbatis Pty Ltd [1999] FCA 1151; 95 FCR 292; 167 ALR 303 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 Lazarus v Director of Public Prosecutions (NSW) [2019] NSWCA 125 Lazarus v Independent Commission Against Corruption [2019] NSWCA 100 Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252; [2019] HCA 3 Potier v State of New South Wales [2014] NSWCA 359
Category:	Principal judgment
Parties:	Sandra Lazarus (Applicant) Michael Kane (First Respondent) Independent Commission Against Corruption (Second Respondent) Director of Public Prosecutions (Third Respondent) District Court of New South Wales (Fourth Respondent)
Representation:	Counsel: No appearance for applicant Ms J E Davidson/Mr D J Reynolds (Third Respondent) Submitting appearances (First, Second and Fourth Respondents) Solicitors: Leigh Johnson Lawyers (Applicant) Crown Solicitor’s Office (Respondents)
File Number(s):	2019/191770