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Lazarus v Keneally

Lazarus v Keneally

Case [2023] NSWSC 349 11 April 2023

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Supreme Court

New South Wales

Medium Neutral Citation: Lazarus v Keneally [2023] NSWSC 349
Hearing dates: 24 November 2022
Decision date: 11 April 2023
Jurisdiction: Common Law
Before: Ierace J
Decision:
(1)   Refuse leave to the first and second plaintiffs to file the notice of discontinuance dated 23 November 2022;
(2)   The summons filed 1 April 2022 is dismissed;
(3)   The first and second plaintiffs are to pay the fifth defendant’s costs of the proceedings.

Catchwords:
CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Where first and second plaintiffs convicted of offences following ICAC investigation – Where plaintiffs seek declarations former Premier and various judicial officers engaged in torture contrary to the Criminal Code (Cth) – Whether pleadings disclose no reasonable cause of action – Whether proceedings would be an abuse of process

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 56
Crimes Act 1900 (NSW), ss 178BB, 300
Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
Criminal Code Act 1995 (Cth), Sch 1, s 274.2
Independent Commission Against Corruption Act 1988 (NSW), ss 11, 74A, 87
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), rr 12.1, 13.4, 13.6, 14.28

Cases Cited:
Dacich v Director of Public Prosecutions (NSW) [2020] NSWCA 313
General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125
Hammond v New South Wales [2013] NSWSC 1930
Lazarus v Director of Public Prosecutions (NSW) [2015] NSWCA 408
Lazarus v Director of Public Prosecutions (NSW) [2015] NSWSC 426
Lazarus v Director of Public Prosecutions (NSW) [2015] NSWSC 1116
Lazarus v Director of Public Prosecutions (NSW) [2016] NSWCA 47
Lazarus v IndependentCommission Against Corruption [2019] NSWCA 100
Lazarus v The State of New South Wales [2018] NSWSC 998
Leerdam v Noori (2009) 227 FLR 210; [2009] NSWCA 90
Penson v Titan National Pty Ltd [2015] NSWCA 404
Seidler v Carrol & O’Dea [2013] NSWSC 338
Ugur v Attorney General for New South Wales [2019] NSWCA 86
Yeldham v Rajski (1989) 18 NSWLR 48

Category: Principal judgment
Parties: Sandra Lazarus (First Plaintiff)
Michelle Lazarus (Second Plaintiff)
Jessica Lazarus (Third Plaintiff)
Kristina Keneally (First Defendant)
Joanne Keogh (Second Defendant)
Michael Barnes (Third Defendant)
Peter Garling (Fourth Defendant)
Attorney General for New South Wales (Fifth Defendant)
Representation:
Counsel:
Submitting appearance (First, Second and Third Defendants)
J G Wherrett (Fifth Defendant)
Solicitors:
Crown Solicitor’s Office (First, Second, Third, Fourth and Fifth Defendants)

File Number(s): 2022/93657

Judgment

HIS HONOUR: This is the hearing of a notice of motion filed on 3 June 2022 by the fifth defendant, the Attorney General for New South Wales (the Attorney General), seeking orders that the Court dismiss or strike out certain proceedings that were commenced by the three plaintiffs by way of a summons filed on 1 April 2022, in which orders were sought in respect of the first four defendants. The three plaintiffs are sisters.

The history of the matter

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 Keneally

Details

AGLC: Lazarus v Keneally [2023] NSWSC 349
Case: [2023] NSWSC 349
Decision Date: 11 April 2023

CaseChat Overview and Summary

The plaintiffs, Lazarus and his co-applicants, brought an action against the first defendant, the former Premier, and the second and third defendants, who were judicial officers. The plaintiffs sought a number of declarations, including that the defendants engaged in conduct amounting to torture, contrary to the Criminal Code (Cth). The defendants applied to dismiss the plaintiffs' action, arguing that the plaintiffs' pleadings disclosed no reasonable cause of action and that to allow the proceeding to continue would be an abuse of process. The court was required to decide whether the plaintiffs' action should be summarily dismissed.

The court considered whether the plaintiffs' pleadings disclosed a reasonable cause of action. The court found that the plaintiffs' claims were not legally tenable because the plaintiffs had been convicted of offences following an investigation by the ICAC. The court held that the plaintiffs' claims were an abuse of process because they were an attempt to relitigate matters that had already been decided by a competent tribunal. The court also found that the plaintiffs' claims were frivolous and vexatious, and that to allow the proceeding to continue would be a waste of the court's resources.

The court dismissed the plaintiffs' action, finding that the plaintiffs' pleadings disclosed no reasonable cause of action and that to allow the proceeding to continue would be an abuse of process. The court found that the plaintiffs' claims were an attempt to relitigate matters that had already been decided by a competent tribunal, and that the plaintiffs' claims were frivolous and vexatious. The court also found that the plaintiffs' claims were an abuse of process because they were an attempt to relitigate matters that had already been decided by a competent tribunal.

No orders for costs were made.

Orders