Lazarus v Kane

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.