Lazarus v Northern Sydney Local Health District

[2021] NSWSC 385

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Lazarus v Northern Sydney Local Health District [2021] NSWSC 385

Hearing dates:

15 April 2021

Date of orders:

15 April 2021

Decision date:

15 April 2021

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

THE COURT ORDERS THAT:

(1) The hearing date of the defendant’s notice of motion filed 26 February 2021, listed on 16 April 2021, is vacated and relisted for hearing on 27 May 2021, with a time estimate of 1 day. No further adjournments should be granted save for exceptional circumstances.

(2) The plaintiffs are to file and serve any amended summons, further affidavits, submissions and notices pursuant to r 1.23 of the Uniform Civil Procedure Rules 2005 (NSW) by 13 May 2021.

(3) The defendants are to file and serve any affidavits and further submissions by 20 May 2021.

(4) As there is uncertainty regarding the representation of the plaintiffs by their current solicitor, or if the plaintiffs’ current solicitor is unable to represent them at the hearing on 27 May 2021, the plaintiffs are required to attend in person or instruct a legal practitioner who can appear.

(5) The plaintiffs are to pay the defendants’ costs thrown away by the adjournment.

Catchwords:

CIVIL PROCEDURE – Application for adjournment – No appearance by plaintiffs – Application granted

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 66

Supreme Court Act 1970 (NSW), s 69

Uniform Civil Procedure Rules 2005 (NSW), r 14.28

Cases Cited:

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Hamod v New South Wales [2011] NSWCA 375

Category:

Procedural rulings

Parties:

Sandra Lazarus (First Plaintiff)
Michelle Lazarus (Second Plaintiff)
Jessica Lazarus (Third Plaintiff)
Northern Sydney Local Health District (First Defendant)
South Eastern Sydney Local Health District (Second Defendant)

Representation:

Counsel:
No Appearance (Plaintiffs)
J Davis (Defendants)

Solicitors:
Leigh Johnson Lawyers (Plaintiffs)
Robertson Saxton Osborne Lawyers (Defendants)

File Number(s):

2021/15016

Publication restriction:

Nil

EX TEMPORE Judgment (REVISED)

1. This matter comes before me today for an application for an adjournment made by the plaintiffs. The first plaintiff is Sandra Lazarus, the second plaintiff is Michelle Lazarus and the third plaintiff is Jessica Lazarus (together, “the plaintiffs”). The first defendant is the Northern Sydney Local Health District and the second defendant is the South Eastern Sydney Local Health District (together, “the defendants”). There is no appearance on behalf of the plaintiffs today. Mr Jonathon Davis, solicitor, appears for the defendants.

2. By summons filed 18 January 2021, the plaintiffs seek a judicial review of the judgment and orders made on 27 October 2020 under s 69 of the Supreme Court Act 1970 (NSW). They seek that the judgment be quashed on numerous bases, including that it gives rise to a matter within Chapter III of the Commonwealth of Australia Constitution Act 1900 (the “Australian Constitution”) on the basis that it is incompatible with the institutional integrity of the Courts of New South Wales and contrary to the operation of s 72 of the Australian Constitution, and that it is in breach and contrary to the doctrine, principles and provisions of the operation of Chapter III of the Australian Constitution and articles 2, 3, 9, 14, 15 and 16 of the International Covenant on Civil and Political Rights.

3. On 26 February 2021, the defendants filed a notice of motion seeking an order for summary judgment or dismissal pursuant to r 13.4, or in the alternative, r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

Equity proceedings 2014/214502 – South Eastern Local Health District v Sandra Lazarus

4. Sandra, Michelle and Jessica Lazarus were respectively the first, second and third defendants to proceedings 2014/214502 in the equity division of this Court in 2020. The first plaintiff in those proceedings was the South Eastern Local Health District and the second plaintiff was the Northern Sydney Local Health District.

5. On 27 October 2020, a default judgment was entered that Sandra Lazarus, the first defendant, pay to the Northern Sydney Local Health District the sum of $423,000 plus interest of $309,523.09 in respect of service fees and solicitors’ costs, which totalled $733,355.59.

6. On 15 December 2020 (which is not referred to in the plaintiffs’ summons filed 18 January 2021), default judgment was entered that Michelle Lazarus, the second defendant, pay to the Northern Sydney Local Health District the sum of $423,000 plus interest of $313,108.77 plus service fees and solicitors’ fees totalling $737,773.77.

7. On 8 December 2020, orders were made to discontinue proceedings against the Jessica Lazarus, the third defendant.

Application for adjournment

8. On the Saturday evening last, Ms Johnson forwarded a notice of motion seeking an adjournment. The plaintiffs relied on a supporting affidavit of Michelle Lazarus dated 7 April 2021.

9. The legal principles I should have regard to when considering an application for an adjournment are ss 56, 57 and 58 of the Civil Procedure Act 2005 (NSW). It is not necessary that I reproduce them here.

10. Section 66 of the Civil Procedure Act relevantly reads:

“(1) Subject to the rules of the Court, the Court may at any time and from time to time, by order, adjourn to a specific day any proceedings before it or in respect of any aspect of such proceedings. The granting of an adjournment is a discretionary decision.”

11. In Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, French CJ relevantly stated at [5]:

“[5] [W]hatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system…”

12. In Hamod v New South Wales [2011] NSWCA 375, Beazley JA (Giles and Whealy JJA agreeing) stated at [141]:

“[141] A just resolution of proceedings remains the paramount purpose of the case management objectives articulated in the relevant procedural provisions of the civil procedure legislation: in particular see the Civil Procedure Act, s 56. What constitutes a ‘just resolution’ is to be understood in light of the purposes and objectives stated in the statutory provisions. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. However, these terms are relative and parties should be given an appropriate opportunity to plead and argue their case. Nonetheless, there are limits to the extent that a party will be accommodated in the conduct of the litigation.”

The plaintiffs’ submissions

13. The plaintiff seeks an adjournment because at the end of March 2021, Jessica gave birth to a child five weeks prematurely. The plaintiffs seek that the hearing date tomorrow be vacated to allow them to prepare for the proceedings at a later date in the interests of natural justice.

14. In her email today, Ms Johnson referred to earlier emails which she asked to be taken into consideration. I have done so. She also relies on an affidavit of 28 February 2021 which sets out her position as the legal representative for the plaintiffs, for whom she is acting on a pro bono basis. She says that she will be filing a notice of removal of solicitor.

15. In her affidavit, Ms Johnson attaches copies of documents which constitute the first of many and continued official communications with the ‘International Criminal Court’. This communication outlines perceived abuses of human rights and various shortcomings of the Australian judicial system, mainly the lack of judicial independence in the State of New South Wales and how it has impacted on the judicial outcomes in the plaintiffs’ judicial proceedings since 2013.

16. The plaintiffs submitted that it is a humane act by the Court to vacate the hearing date and provide them with the time needed to prepare for the hearing. They say that the right to adequate preparation time in the judicial proceedings is raised in both national and international law by which we are all governed.

He defendants’ submissions

17. On Monday, 12 April 2021, Mr Davis emailed my associate advising that he was instructed to oppose the adjournment. Mr Davis pointed out that Jessica, the third plaintiff, is not a person in respect of whom any relief is or could be sought because the equity proceedings were discontinued against her. While there are three plaintiffs, the only relief sought in the plaintiffs’ summons filed 18 January 2021 refers to “the judgment and orders made on 27 October 2020”. The default judgment entered on 27 October 2020 was in relation only to Sandra Lazarus. Mr Davis submitted that there is an interest in bringing finality to the litigation and that the plaintiffs’ statement of claim is not competent.

18. Mr Alexander Trevena, in his affidavit dated 14 April 2021, draws the Court’s attention to the fact that although the plaintiffs are relying on constitutional issues, it has failed to serve any notices pursuant to UCPR 1.23. A constitutional notice was required to be served two days before the directions hearing in this matter on 15 February 2021.

Consideration

19. Yesterday, Ms Johnson advised my associate that she suffers from a chronic respiratory condition and is at high risk of infection. She requested the hearing take place via telephone conference rather than AVL. The matter was listed today for hearing via AVL. This morning, my associate received another email from Ms Johnson stating that she would not be appearing for the hearing of the adjournment application “due to [her] prior commitments and the short notice and the plaintiffs’ position”. Then she stated that the plaintiffs’ position and her own position remain unchanged. From that latter statement, I do not know whether Ms Johnson is going to file a notice of removal of solicitor or not.

20. As I have said, although there are three plaintiffs, the only default judgment entered on 27 October 2020 related to Sandra Lazarus. It is unclear whether Michelle intends to seek judicial review in relation to the default judgment that was entered against her on 15 December 2020. Jessica’s position is unclear because the equity proceedings taken against her were dismissed.

21. As the defendants seek summary judgment, it is a serious step to take to dismiss the proceedings without the plaintiffs’ presence, because it means that the plaintiffs will be denied a trial on its merits.

22. Taking these considerations into account, it is my view that justice is best served if the plaintiffs are given one further opportunity to file and serve any amended summons, further affidavits, submissions and constitutional notices by 13 May 2021, some five weeks away. However, it is my view that no further adjournments should be granted save for exceptional circumstances.

23. I also order the defendants to serve any affidavits and further submissions by 20 May 2021.

24. As there is some uncertainty as to whether the plaintiffs will continue to be represented by their current solicitor, the plaintiffs are required to attend at the next hearing in person or instruct a legal practitioner who can appear on the next occasion.

Costs

25. As to costs, the defendants seek the costs thrown away of the adjournment on the basis the plaintiffs have been granted an indulgence. It was also noted that they have not filed submissions in accordance with the timetable set by the Registrar.

26. Costs are discretionary. The plaintiffs are not ready to proceed today. In these circumstances, the plaintiffs should pay the defendants’ costs thrown away by the adjournment.

THE COURT ORDERS THAT:

1. The hearing date of the defendant’s notice of motion filed 26 February 2021, listed on 16 April 2021, is vacated and relisted for hearing on 27 May 2021, with a time estimate of 1 day. No further adjournments should be granted save for exceptional circumstances.

2. The plaintiffs are to file and serve any amended summons, further affidavits, submissions and notices pursuant to r 1.23 of the Uniform Civil Procedure Rules 2005 (NSW) by 13 May 2021.

3. The defendants are to file and serve any affidavits and further submissions by 20 May 2021.

4. As there is uncertainty regarding the representation of the plaintiffs by their current solicitor, or if the plaintiffs’ current solicitor is unable to represent them at the hearing on 27 May 2021’ the plaintiffs are required to attend in person or instruct a legal practitioner who can appear.

5. The plaintiffs are to pay the defendants’ costs thrown away by the adjournment.

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Amendments

26 April 2021 - Typographical error on cover sheet and Order (4)

Decision last updated: 26 April 2021