Lazarus v Kane

[2018] NSWCA 224

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Lazarus v Kane [2018] NSWCA 224

Hearing dates:

24 September 2018

Date of orders:

24 September 2018

Decision date:

24 September 2018

Before:

Payne JA

Decision:

(1) Applicants to file and serve written submissions by 22 October 2018;

 

(2) Applicants to provide copies of any documents they seek to add to the white folder to the solicitor for the respondents by 22 October 2018;

 

(3) Respondents to file and serve written submissions by 5 November 2018;

 

(4) Leave granted to the respondents to uplift and supplement white book until 12 November 2018;

 

(5) Set aside Orders 3-7 of the Registrar made on 6 August 2018;

 (6) Matter listed for further directions on 29 October 2018.

Catchwords:

CIVIL PROCEDURE – case management – application for additional time to file written submissions in appeal – whether it is in the interests of justice to grant additional time where applicants are self-represented and awaiting outcome of application for legal assistance

Category:

Procedural and other rulings

Parties:

Sandra Lazarus (First Applicant)
Michelle Lazarus (Second 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)
Local Court of New South Wales (Fifth Respondent)

Representation:

Counsel:

 

In person (First Applicant)

 

Solicitors:

  Crown Solicitor’s Office (Respondents)

File Number(s):

2017/213601

Judgment EX-TEMPORE

[Amended in accordance with the principles in Bar-Mordecai v Rotman [2000] NSWCA 123 at [194]]

1. PAYNE JA: The applicants, Ms Sandra Lazarus and Ms Michelle Lazarus, have commenced proceedings seeking relief in the Court’s supervisory jurisdiction under s 69 of the Supreme Court Act 1970 (NSW). The applicants’ matter is listed for a one day hearing in this Court on 22 November 2018.

2. Ms Sandra Lazarus, who appears today, informs me that she and her sister are anxious to retain that date for hearing. As I made clear in argument, the Court has a significant interest in maintaining the date. If for any reason the case could not proceed on 22 November 2018, not only these parties but other litigants whose cases are waiting to be heard would also suffer.

3. The background to the application is that on 1 July 2018, Ms Sandra Lazarus made an application for a grant of legal aid in relation to this matter. On 21 September 2018, Legal Aid New South Wales informed the Court that the application is still awaiting determination.

4. Earlier, on 6 August 2018, the Court of Appeal Registrar made the following orders:

“1. Applicants to file and serve submissions by 17 September 2018.

2. Matter listed for further directions on 24 September 2018, to be vacated if the applicants’ submissions are filed.”

5. Submissions on behalf of the applicants were not filed by 17 September 2018. The matter has been referred to me this morning.

6. Essentially, Ms Sandra Lazarus submits that, as self-represented litigants, she and her sister Michelle require considerable additional time to prepare their written submissions. The Court has made it clear that written submissions must be filed and that an earlier proposal apparently made to the Registrar this morning to rely on oral submissions alone is completely unacceptable.

7. Having regard to the fact that Ms Sandra Lazarus and her sister are, at this stage, self-represented and also having regard to the fact of the desirability of the Court receiving cogent written submissions, Ms Lazarus submitted that she should be given until the week beginning 22 October 2018 in order to file her written submissions.

8. Mr Frommer, who appears today for the respondents, did not strictly oppose the extension of time but pointed out that extending the timeframe in this way will potentially create difficulties for the parties and the Court. Whilst I acknowledge those difficulties, having regard to the interests of justice and noting the fact that the application for legal aid remains pending, I have determined the make the following orders:

1. Applicants to file and serve written submissions by 22 October 2018;

2. Applicants to provide copies of any documents they seek to add to the white folder to the solicitor for the respondents by 22 October 2018;

3. Respondents to file and serve written submissions by 5 November 2018;

4. Leave granted to the respondents to uplift and supplement white book until 12 November 2018;

5. Set aside Orders 3-7 of the Registrar made on 6 August 2018;

6. Matter listed for further directions on 29 October 2018.

9. It was made clear to Ms Lazarus in the course of argument that the Court expected the matter to proceed on 22 November 2018 and that a very considerable indulgence was being granted to the applicants in the extension of time to file their written submissions until 22 October 2018. The matter was listed on 29 October 2018 to ensure compliance with this revised timetable.

10. At the conclusion of argument in this matter Ms Sandra Lazarus sought an assurance that the white book as supplemented would be served upon her. Mr Frommer provided that assurance. I do not propose to make any formal order about that matter.

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Decision last updated: 03 October 2018