Lazarus v The State of New South Wales

[2018] NSWSC 998

Supreme Court

New South Wales

Medium Neutral Citation:	Lazarus v The State of New South Wales [2018] NSWSC 998
Hearing dates:	16 February 2018
Date of orders:	28 June 2018
Decision date:	28 June 2018
Jurisdiction:	Common Law
Before:	Walton J
Decision:	The State of NSW shall bring in short minutes of order reflecting this judgment within 14 days of publication.
Catchwords:	CIVIL PROCEDURE – dismissal of proceedings – no reasonable cause of action disclosed – abuse of process– UCPR r 13.4 – alleged failure to provide procedural fairness – alleged deficiency in Magistrate’s reasons for decision – refusal of Magistrate to recuse self – alleged acts of torture – no applicable civil penalty regime – claims for compensation and damages – no precise quantification – conduct protected by judicial immunity – ss 44A and 44B of the Judicial Officers Act 1986 (NSW) – no private cause of action for alleged commission of 'torture' – provisions under Div 274 of the Criminal Code Act 1995 (Cth) not met – international treaties and conventions inapplicable unless validly incorporated into Australian law – no adverse action under the Anti-Discrimination Act 1977 (NSW) or Racial Discrimination Act 1975 (Cth) – no allegation of making complaints pursuant to Australian Human Rights Commission Act 1986 (Cth) or Anti-Discrimination Act – no jurisdictional error – matters litigated – re-pleading could not save claims or pleadings – amended statement of claim dismissed
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Australian Constitution Australian Human Rights Commission Act 1986 (Cth) Constitution Act 1902 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Criminal Code Act 1995 (Cth) Disability Discrimination Act 1992 (Cth) Judicial Officers Act 1986 (NSW) Racial Discrimination Act 1975 (Cth)Crimes Act 1900 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Attorney General (NSW) v Quin (1990) 170 CLR 1 Baker v New South Wales Police [2013] NSWSC 57 Carreon v The Honourable Amanda Vanstone [2005] FCA 865 Chow Hung Ching v The King (1948) 77 CLR 449 Dietrich v The Queen (1992) 177 CLR 292 Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34 Hammond v State of New South Wales [2015] NSWCA 304 Hammond v The State of New South Wales [2013] NSWSC 1930 In re McC (A Minor) [1985] AC 528 Lazarus and Ors v Independent Commission Against Corruption and Anor; Lazarus v State of New South Wales and Ors [2018] NSWSC 138 Lazarus v Director of Public Prosecutions (NSW) [2015] NSWCA 408 Lazarus v Director of Public Prosecutions (NSW) [2015] NSWSC 426 Lazarus, Lazarus & Lazarus v Kane & Ors [2017] NSWSC 1150 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 National Australia Bank Ltd v Charlton [2018] NSWSC 157 Sandra Lazarus v The Queen; Michelle Lazarus v The Queen, Judgment on Application for Permanent Stay of Proceedings, unreported, District Court of NSW (Zahra DCJ), 19 August 2016 Sirros v Moore [1975] QB 118 State of New South Wales v Paige (2002) 60 NSWLR 371; [2002] NSWCA 235 Tajjour v New South Wales (2014) 254 CLR 508; [2014] HCA 35
Category:	Principal judgment
Parties:	Sandra Lazarus (plaintiff / respondent) State of New South Wales (first defendant / applicant on motion) Local Court of New South Wales (second defendant) Magistrate Joanna Keogh (third defendant)
Representation:	Counsel: J Davidson (first and third defendants / applicant on motion)   Solicitors: Crown Solicitor’s Office (defendants / applicant on motion)
File Number(s):	2017/247213

Judgment

1. HIS HONOUR: By an amended statement of claim filed 11 September 2017 (“ASOC”), Sandra Lazarus (“Ms Lazarus”) brought proceedings seeking, inter alia, damages from 3 defendants: the State of New South Wales (“the State of NSW”), the Local Court of New South Wales (“the Local Court”) and Magistrate Joanna Keogh (collectively “the defendants”).

2. By a notice of motion filed 15 September 2017, the State of NSW sought orders that the ASOC be dismissed pursuant to r 13.4(1)(b) and (c) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) (“the first prayer for relief”) and, in the alternative, that the ASOC be struck out pursuant to r 14.28 of the UCPR (“the second prayer for relief”) (“the notice of motion”). An affidavit of Christopher Frommer affirmed 15 December 2017 was read on the notice of motion.

3. When the motion was called for hearing on 16 February 2018, the State of NSW and Magistrate Keogh were represented by Ms Joanna Davidson of counsel. Magistrate Keogh entered an active appearance because of the first 3 prayers for relief in the ASOC which will be described below. No criticism may be made of that approach. The Local Court entered a submitting appearance. There was no appearance for or on behalf of Ms Lazarus.

4. The notice of motion had been listed before Johnson J sitting as Duty Judge on 12 February 2018 to hear an application to vacate the date fixed for the hearing of the notice of motion proceedings, namely, 16 February 2018 (based upon a removal application that had been filed in the High Court with respect to separate Court of Appeal proceedings). His Honour dismissed the application and published his reasons: Lazarus and Ors v Independent Commission Against Corruption and Anor; Lazarus v State of New South Wales and Ors [2018] NSWSC 138.

5. On that instance, Ms Lazarus appeared with Ms Michelle Lazarus, her sister and co-plaintiff in other proceedings, to prosecute the application. The adjournment application was refused. In the final paragraph of his Honour’s judgment, he observed “I note that the matter stand listed for hearing before Walton J this Thursday and Friday” (at [31]) (the reference to the Thursday listing concerned an applications for, inter alia, for summary dismissal with respect to the proceedings in 2017/232535).

6. Upon the motion being called on 16 February 2018, no appearance was entered by Ms Lazarus. In the light of the prior notice of the proceedings given by the refusal of the adjournment of the notice of motion, and the decision of Johnson J in that respect confirming the hearing of this matter on that day, a decision was made to hear the notice of motion proceedings ex parte. By this judgment, the notice of motion is determined by the Court.

THE ASOC

7. By the ASOC, Ms Lazarus sought 15 orders which appear below:

1 An order that Third Defendant undergo counselling and training in the area of anti-discrimination;

2 An order that the Third Defendant undergo counselling and training to allow the Third Defendant to improve her behaviour/conduct and understanding towards individuals with disability;

3 An order that the Third Defendant be removed from exercising her judicial functions until counselling and training are completed;

4 A civil penalty be imposed on the Defendants;

5 Compensation for the adverse action;

6 Compensation to be provided to the Plaintiff for personal injuries, harm, stress, illness, mental anguish, severe physical and mental pain, suffering and damages imposed on the Plaintiff;

7 Interest on any compensation;

8 Damages for the adverse action;

9 Damages for the personal injuries, harm, stress, illness, mental anguish, adverse actions, severe physical and mental pain, suffering and damages imposed on the Plaintiff;

10 Interest on any damages;

11 Damages for the breach of the Plaintiffs Human Rights;

12 An order that the Defendants pay the sum of $287,000,000.00 (two hundred and eighty seven million Australian Dollars) to the Plaintiff for the adverse actions and conduct against the Plaintiff, and the associated prolonged harm, stress, personal injuries, mental anguish, medical illnesses, illness, severe physical and mental pain, suffering and damages experienced by the Plaintiff;

13 The Plaintiff is concerned to ensure that the Defendants no longer use their official capacity power/authority in a manner that constitutes a breach of sections 274.1 and 274.2 of the Criminal Code Act 1995, and/or adverse action/s, and/or cause personal injuries, harm and/or damages and/or severe physical and mental pain to the Plaintiff or any other person, including persons who's judicial proceedings they preside over within their official capacity.

14 Defendants to pay the Plaintiffs costs in this Court.

15 Such other orders as the Court deems fit.

8. It will be observed that prayer 13 sets out a concern without seeking relief. Prayer 14 seeks costs and prayer 15 seeks any other orders as the Court deems fit.

9. There was a verifying affidavit for the ASOC from Ms Lazarus.

10. The principal heading within the ASOC is “Pleadings and Particulars”. Under that heading, there were 90 paragraphs were divided under a series of headings:

1. “Parties”;

2. “Charter of the United Nations Act 1945 (Commonwealth)”;

3. “Universal Declarations of Human Right [sic]”;

4. “International Covenant on Civil and Political Rights”;

5. “United Nation Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”;

6. “Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”;

7. “Convention of the Rights of Persons with Disability”;

8. “Constitution”;

9. “Judicial Oath”;

10. “Criminal Code”;

11. “Judicial Proceedings”;

12. “Request for Disqualification”;

13. “Forensic Evidence”;

14. “27 November 2014”;

15. “6 February 2015”;

16. “13 April 2015”;

17. “16 April 2015”;

18. “27 April 2015”;

19. “Contravention of section 274.1, and 274.2 of the Criminal Code Act 1995 (Commonwealth)”; and

20. “Cause of Action”,

(collectively “the headings”).

11. Various aspects of those “pleadings and particulars” will be discussed below but it is useful before doing so to extract one paragraph under the heading “Parties” and the paragraphs under the heading “Cause of Action”.

12. Paragraph 4 under the heading “Parties” was as follows:

The Third Defendant is a New South Wales Local Court Magistrate; an individual empowered to preside over judicial proceedings within the State of New South Wales under the Local Court Act 2007 (New South Wales) and within Chapter III of the Constitution, and thus, within the Constitutional judiciary, is provided with immunity and/or protection, expect for a breach of section 274.1 and 274.2 of the Criminal Code Act 1995, incorporated in relation to the 'United Nation Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment'. The Criminal Code Act 1995 is a part of the Constitution of Australia. In accordance with section 274.2(3) of the Criminal Code Act 1995, the Third Defendant acted in her

official capacity as a public official while presiding over judicial proceedings against the Plaintiff, and as such has absolute liability for a breach of sections 274.1 and 274.2 of the Criminal Code Act 1995. Further, the Third Defendant has no immunity and/or protection, according to section 274.4 of the Criminal Code Act 1995, which provides no exception for the breach of sections 274.1 and 274 2 of the act.

13. Paragraphs 82 to 90 appeared under the heading “Cause of Action” and was as follows:

82 The conduct set out in the above paragraphs constituted to torture, cruel and inhuman treatment and punishment of the Plaintiff as a vulnerable person who was subjected by the Defendants in their official capacity of power, conduct which is defined under section 274.1 and 274.2 of the Criminal Code Act 1995 (Commonwealth) and the Commonwealth of Australia Constitution Act 1900; Charter of the United Nations Act 1945 (Commonwealth); United Nation Universal Declaration of Human Right; International Covenant on Civil and Political Rights; United Nation Convention Against Torture and Other Cruel; Inhuman or Degrading Treatment or Punishment; Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel inhuman or Degrading Treatment or Punishment; Convention on the Rights of Persons with Disability (not limited to).

83 The conduct set out in the above paragraphs constituted to adverse action by the Defendants against the Plaintiff, and is unlawful in terms of the Disability Discrimination Act 1992 (Commonwealth); Commonwealth of Australia Constitution Act 1900; Charter of the United Nations Act 1945 (Commonwealth); United Nation Universal Declaration of Human Right; International Covenant on Civil and Political Rights; United Nation Convention Against Torture and Other Cruel; Inhuman or Degrading Treatment or Punishment; Declaration on the Protection of AH Persons from Being Subjected to Torture and Other Cruel Inhuman or Degrading Treatment or Punishment; Convention on the Rights of Persons with Disability (not limited to).

84 The conduct set out in the above paragraphs constituted a jurisdiction error under Commonwealth of Australia Constitution Act 1900; Criminal Procedures Act 1986 (NSW); Crimes (Forensic Procedure) Act 2007; Evidence Act 1995 (NSW) (but not limited to).

85 The conduct set out in paragraph 57 constituted to adverse action by the Defendants against the Plaintiff, and is unlawful in terms of the Anti-Discrimination Act 1977 (New South Wales); Racial Discrimination Act 1975 (Commonwealth); Commonwealth of Australia Constitution Act 1900; Charter of the United Nations Act 1945 (Commonwealth); United Nation Universal Declaration of Human Right; International Covenant on Civil and Political Rights; United Nation Convention Against Torture and Other Cruel; Inhuman or Degrading Treatment or Punishment; Declaration on the Protection of Ail Persons from Being Subjected to Torture and Other Cruel Inhuman or Degrading Treatment or Punishment; Convention on the Rights of Persons with Disability (but not limited to).

86 By the conduct described in the above paragraphs the Defendants have breached the Plaintiff's rights to be considered as equal before the law, including but not limited to her rights to a Fair and Just trial Term; right to Natural Justice Term; right to Civil Liability Term; Equal in Dignity and Rights Term; Innocent Until Proven Guilty Term; Proven Beyond Reasonable Doubt Term; rights as a person with disability Term.

87 Due to the conduct of the Defendants, the Plaintiff has suffered physical injury and constant pain, mental anguish, stress, discrimination, humiliation, illness, severe physical, mental pain, for which the Plaintiff continues to seek medical treatment.

88 The Plaintiff is concerned to ensure that the Third Defendant no longer uses her position of authority in her official capacity to harm and subject others to torture, cruel and inhuman treatment and punishment to obtain unlawfully information, confessions, and/or intimidate others.

89 Further, and without limiting the preceding clause, the Defendants have, by the conduct above and below, breached its obligation under the of Commonwealth of Australia Constitution Act 1900; Charter of the United Nations Act 1945 (Commonwealth); United Nation Universal Declaration of Human Right; International Covenant on Civil and Political Rights; United Nation Convention Against Torture and Other Cruel; Inhuman or Degrading Treatment or Punishment; Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel Inhuman or Degrading Treatment or Punishment; Convention on the Rights of Persons with Disability; Evidence Act 1995 (NSW); Criminal Procedures Act 1986 (NSW); Local Court Act 2007 (NSW); Crimes (Forensic Procedure) Act 2000 (NSW), and further breached/contravened section 274.1 and 274.2 of the Criminal Code Act 1995 (Commonwealth) but not limited to;

a. On 22 October 2014 the burden of proof was placed on the Plaintiff, as such, the Forensic Document Examiner's report was submitted intojudicial proceedings, and section 141 of the Evidence Act 1995 (NSW)was breached/contravened by the Defendants;

b. On 27 November 2014 the Third Defendant dismissed the ForensicDocument Examiner's report of the very Forensic Document Examinerwhose services were utilised by the Director of Public Prosecution toprove their case, and as such the Defendants breached/contravened Criminal Procedures Act 1986 (NSW); Evidence Act 1995 (NSW); Crimes (Forensic Procedure) Act 2000 (NSW) but not limited to;

c. On 27 November 2014 and 27 April 2015 the Plaintiff was placed in custody without her medication and disability aid, as stated in the above paragraphs.

d. On 06 February 2015 and 13 April 2015 the Second Defendant wasaware of the torture, cruel and inhuman treatment and punishment thePlaintiff was subjected to on 27 November 2014, by the ThirdDefendant.

e. On 27 April 2015 the Plaintiff was placed back into custody and further subjected to torture, cruel and inhuman treatment and punishment to such a degree that the Plaintiff was taken in an ambulance from the court building and hospitalised for the injuries which were inflected on her by the Third Defendant, and to date she receives medical treatments.

90 The conduct set out in paragraphs above the Defendants breached/contravened its obligation under the of Commonwealth of Australia Constitution Act 1900; Charter of the United Nations Act 1945 (Commonwealth); United Nation Universal Declaration of Human Right; International Covenant on Civil and Political Rights; United Nation Convention Against Torture and Other Cruel; Inhuman or Degrading Treatment or Punishment; Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel Inhuman or Degrading Treatment or Punishment; Convention on the Rights of Persons with Disability; Evidence Act 1995 (NSW); Criminal Procedures Act 1986 (NSW); Local Court Act 2007 (NSW); Crimes (Forensic Procedure) Act 2000 (NSW), Oath Act 1900, Evidence Act 1995 (but not limited to), and further breached/contravened section 274.1 and 274.2 of the Criminal Code Act 1995 (Commonwealth).

14. The causes of action may be principally discerned from that which appears under those headings but may, to some extent, be also illuminated by the relief sought as extracted at [7] above.

15. The focus of Ms Lazarus’ claims were proceedings before Magistrate Keogh and contentions as to her Honour’s conduct during the course of the proceedings. Ms Lazarus was convicted and sentenced in those proceedings by Magistrate Keogh.

16. I have examined the summary by the State of NSW of the complaints as to her Honour’s conduct, in that respect, by Ms Lazarus. The summary is accurate. What appears below is the product of that summary interweaved in the various pleadings or contentions within the ASOC:

1. an alleged failure to provide Ms Lazarus with procedural fairness in the proceedings, including by a failure to require the Independent Commission Against Corruption to produce certain seized material in response to a subpoena: ASOC at paras 28-35;

2. deficiencies in her Honour’s reasons: see for example ASOC at paras 36-38, 49-50, 54-57 and 62-65;

3. her Honour’s refusal of an application to recuse herself made on 8 October 2014: ASOC at paras 39-40;

4. her Honour’s alleged “torture” of the plaintiff during a period she spent in custody on 27 November 2014 following the delivery of her Honour’s verdict and reasons which incorporated a contention that there was a failure to order a pre-sentence report to ensure that Ms Lazarus would receive her medication and disability aid (a cushion for her back) whilst in custody: ASOC at paras 51-61; and

5. a further similar incident of “torture” said to have occurred on 27 April 2015, the date the plaintiff was sentenced. The act of torture was said to be that Ms Lazarus was placed in custody without her disability aid and medication. It was contended that Magistrate Keogh had perpetuated or participated in that act by refusing to make orders to provide Ms Lazarus with her disability aids: ASOC at paras 66-75.

FACTUAL AND PROCEDURAL BACKGROUND

17. On 27 November 2014, Magistrate Keogh found Ms Lazarus guilty of 44 criminal offences, being 16 offences against s 178BB of the Crimes Act 1900 (NSW) (obtaining money by false or misleading statements) and 28 offences against s 300 of that Act (making or using false instruments). Sentences of imprisonment were imposed, with an effective head sentence of 1 year and 9 months and a non-parole period of 1 year and 4 months.

17. The charges related to frauds on two Sydney hospitals allegedly committed between 2008 and 2009 which were investigated in “Operation Charity”. The prosecution case was that Ms Lazarus obtained access to staff and facilities, including computer networks of the Royal Hospital for Women and the Royal North Shore Hospital, on the basis that she was a PhD student seeking to conduct trials of a device intended to diagnose various cancers.

18. The charges alleged misuse of requisition forms, “vendor maintenance forms” and “non-order vouchers”, used at the Royal Hospital for Women and the Royal North Shore Hospital to support payments for goods and services. Ms Lazarus was alleged to have forged the signatures of a number of doctors and professors from the two hospitals on such forms and to have lodged invoices, in the names of companies of which either she or her sister were the sole director or shareholder, claiming substantial payments for work which was not done and materials which were not provided: Lazarus, Lazarus & Lazarus v Kane & Ors [2017] NSWSC 1150 at [8] (per Wilson J) (see also Sandra Lazarus v The Queen; Michelle Lazarus v The Queen, Judgment on Application for Permanent Stay of Proceedings, unreported, District Court of NSW (Zahra DCJ), 19 August 2016 at [7]). Her defence was that the work referred to in the various invoices was genuinely carried out and that the doctors’ signatures authorising payment were genuine.

19. On 5 February 2015, Ms Lazarus appeared before Button J in this Court seeking ex parte judicial review of the criminal proceedings in which Magistrate Keogh had found her guilty. His Honour granted Ms Lazarus leave to file the summons in court and stood the proceedings over until the following day. Ms Lazarus filed an amended summons in this Court on 12 February 2015 seeking that Magistrate Keogh be disqualified and that the proceedings before her be reheard and determined by another Magistrate according to law: see Lazarus v Director of Public Prosecutions (NSW) [2015] NSWSC 426 (“Lazarus v DPP (No 1)”) at [5].

20. The judicial review proceedings were heard by Garling J on 13 April 2015. On 14 April 2015, his Honour ordered that the proceedings be dismissed: Lazarus v DPP (No 1). Leave to appeal was refused: Lazarus v Director of Public Prosecutions (NSW) [2015] NSWCA 408 (“Lazarus v DPP (No 2)”) (per Meagher and Gleeson JJA).

21. On 27 April 2015, Ms Lazarus filed a Notice of Appeal to the District Court pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW), appealing against her conviction and sentence. She was granted bail pending determination of her appeal, which had the effect of staying the execution of the sentence that had been imposed. That appeal is extant as to the plaintiff’s sentence.

THE NOTICE OF MOTION AND RELEVANT PRINCIPLES

23. In support of the notice of motion, the counsel for the State of NSW placed primary reliance upon the provisions of r 13.4(1)(b) of the UCPR, namely, that the proceedings disclosed no reasonable cause of action. However, the State of NSW also relied upon r 13.4(1)(c) of the UCPR upon the basis that aspects of the ASOC represented an abuse of process. It was submitted that, even if the principles of res judicata and issue estoppel had no direct application with respect to the claims against the State of NSW and Magistrate Keogh, the proceedings may be properly dismissed under r 13.4(1)(c) on the basis that Ms Lazarus sought to re-litigate issues that had been determined by this Court.

24. The Court, as presently constituted, recently had occasion to consider the principles relevant to summary dismissal applications of the present kind (under r 13.4(1)(b)) in National Australia Bank Ltd v Charlton [2018] NSWSC 157. The State of NSW in this matter did not raise any different issue of general principle. In the result, I extract and adopt the following principles in determination of the notice of motion:

[51] It was common ground that the first prayer for relief in the notice of motion was an application for summary dismissal and that, given the claim deprived NAB of the opportunity to establish its case with the benefit of full hearing of the merits, it should only be granted in the clearest of cases: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at 129-130; Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 (“Agar”) at [57]; Spencer v The Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 (“Spencer”) at [55].

[52] NAB also placed reliance upon the judgment of Barrett JA (with whom Beazley, McColl and Macfarlan JJA and McClellan CJ at CL agreed) in Shaw v New South Wales (2012) 219 IR 87; [2012] NSWCA 102 (“Shaw”) at [32] which stated the relevant test was as follows:

The question is therefore whether the claims in question are so obviously untenable or groundless that there is “a high degree of certainty” that they will fail if allowed to go to trial; and whether this is one of the “clearest of cases” in which the court may accordingly intervene to prevent the claims being litigated.

(His Honour was concerned with whether the claim was “doomed” or “hopeless”).

[53] It should be observed that although Shaw concerned an application to strike out certain paragraphs of an amended statement of claim under r 14.28 of the UCPR, the statements of principle are broadly applicable in the present context.

[54] The following observations in Agar may also be noted (at [57]):

Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way. [Footnotes omitted.]

[55] Reference should be made to the recent judgment of Leeming JA (with whom Macfarlan and Simpson JJA agreed) in Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83; [2017] NSWCA 19 (“Perera”) at [30] as follows:

I would reject the first aspect of Mr Perera’s complaint, based on the alleged failure expressly to identify the cautious approach to summary dismissal. There are of course a variety of formulations of the applicable test where a defendant applies for the summary intervention of the court to prevent a plaintiff’s case being determined in the usual way at trial. Barwick CJ collected some in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129: “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action” and “be manifest that to allow [the pleadings] to stand would involve useless expense”. In part that variety stems from whether the application is made in the court’s inherent jurisdiction or under the rules (see Dixon J’s analysis in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91–92), which may in turn affect the material available to the court. In part it turns on differences in the rules of different courts, and in particular on the relaxation of the test which has occurred in some courts: see Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at [56]. But for present purposes, two matters are clear. One is that common to all the various formulations is the need for “exceptional caution”, as was explained in Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57] and Spencer at [53]–[55]. The other is that the inquiry is as to the demonstrated certainty of the outcome of the litigation, as opposed to its prospects of success.

[56] I note Leeming JA’s reference to Spencer incorporated the following passage (at [55]):

As Barwick CJ also pointed out in General Steel Industries, the test to be applied was expressed in many different ways, but in the end amounted to different ways of saying “that the case of the plaintiff is so clearly untenable that it cannot possibly succeed” (emphasis added). As that formulation shows, the test to be applied was one of demonstrated certainty of outcome. [Footnotes omitted.]

[57] No reference was made by the parties to the statutory duty imposed by s 56(1) and (2) of the Civil Procedure Act 2005 (NSW). By reference to the judgment of Hammerschlag J in Simmons v Protective Commissioner of NSW also known as NSW Trustee and Guardian [2012] NSWSC 455 at [57]-[64] and the consideration of that judgment by Ward J in McDonald v Grech [2012] NSWSC 717 at [32]-[34], the learned authors in Ritchie’s Uniform Civil Procedure (NSW) suggested that the dismissal power conferred by r 13.4(1)(b) may not be confined to proceedings that are so demonstrative as to be certain to fail. Having regard to the conclusions reached in this matter, it is unnecessary to reach any view as to that opinion, although the proposition is prima facie attractive, provided it is recognised the relevant inquiry is that stated in Perera, namely, the demonstrated certainty of the outcome of the litigation.

[58] The aforementioned principles are plainly applicable to the second limb of conditions of r 13.4(1)(b). …

PRAYERS FOR RELIEF IN THE ASOC

Prayers 1- 3

25. I accept the submission of Ms Davidson that prayers 1-3 of the ASOC disclose no cause of action whatsoever. Insofar as the third prayer for relief seeks the removal of Magistrate Keogh from exercising her judicial functions, on a particular basis, the Court has no jurisdiction to entertain the application.

26. In that respect, I note the provisions of s 53(1) and (2) of the Constitution Act 1902 (NSW) are as follows:

53 Removal from judicial office

(1) No holder of a judicial office can be removed from the office, except as provided by this Part.

(2) The holder of a judicial office can be removed from the office by the Governor, on an address from both Houses of Parliament in the same session, seeking removal on the ground of proved misbehaviour or incapacity.

Prayer 4 (Civil Penalty)

27. Prayer 4 seeks that a civil penalty be imposed on all defendants. However, the ASOC does not identify any civil penalty regime applicable to the defendants. I agree with the submission of the State of NSW that there is no applicable civil penalty regime relevant to the conduct pleaded and as such, no cause of action is disclosed in that respect.

Prayers 5-12

28. Prayers 5 to 12 concern claims with respect to compensation and damages for personal injuries, harm, stress, illness, mental anguish, severe physical and mental pain, suffering and damages, damages for adverse action, damages for the breach of Ms Lazarus’ “human rights” and interest on compensation or damages. No distinction is drawn between the claims for compensation and damages, but the claims for both are stated as being in the amount of $287,000,000 (although the precise basis for that quantification is not identified in the ASOC).

29. I have earlier extracted the pleadings and particulars within the ASOC which fall under the heading “Cause of Action”, and the State of NSW’s submission describing, in summary, the complaints made by Ms Lazarus at [16] of this judgment.

30. There were 6 limbs to the State of NSW’s challenge with respect to these prayers for relief (as earlier summarised). I will deal with each one in turn below.

Judicial Immunity

31. It was submitted by the State of NSW that all of the conduct relied upon by Ms Lazarus was conduct that would attract judicial immunity. There were 3 basis to that submission all of which I accept. First, the claims against the State of NSW and the Local Court were made on the basis of their liability for actions of Magistrate Keogh (although the basis upon which they are said to be liable is not stated). Secondly, all of the conduct of Magistrate Keogh relied upon in the ASOC is conduct that took place in the performance of her duties as a judicial officer. Thirdly, the exception relied upon by Ms Lazarus vis-à-vis a breach of Div 274 of the Criminal Code Act 1995 (Cth) (“the Commonwealth Criminal Code”) is not available.

32. The first two of these considerations will be dealt with under this heading and the third will be dealt with under a separate heading below.

33. Save for the issue concerning Div 274 of the Commonwealth Criminal Code, Ms Lazarus appears to have accepted that Magistrate Keogh engaged in any pleaded conduct as a magistrate. It was contended that she was a magistrate “within the constitutional judiciary” and was provided with “immunity and/or protection”. It was also pleaded that her Honour acted in her “official capacity as a public official while presiding over judicial proceedings” against Ms Lazarus, and that it was a continuation of Magistrate Keogh “within her official capacity as the magistrate in judicial proceedings” that allowed her to “place [Ms Lazarus] in custody in custody on 27 November 2014 and 27 April 2015”. Those pleadings as to the capacity under which Magistrate Keogh acted at all relevant times accord with the evidence before the Court.

34. As so pleaded (again, subject to the Div 274 issue), the complaints could not, in my view, give rise to a civil liability and could not therefore give rise to a reasonable cause of action. There is no prospect that the pleadings may be cured by amendment given their nature. My reasons may be briefly stated by reference to the provisions of s 44A and s 44B of the Judicial Officers Act 1986 (NSW) and to the judgment of the High Court in Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34 (“Fingleton”).

35. Section 44A of the Judicial Officers Act is in the following terms:

44A Immunity of Supreme Court Judges

The protection and immunity of a Judge of the Supreme Court (or a Judge having the same status as a Judge of the Supreme Court) performing duties as such a Judge extends to the Judge when performing ministerial duties as such a Judge.

36. Section 44B(1) provides that a judicial officer "has, in the performance of his or her duties as a judicial officer (including ministerial duties), the same protection and immunity as a Judge of the Supreme Court has in the performance of his or her duties as a Judge". A magistrate is a "judicial officer" within the meaning of s 44B of the Judicial Officers Act: see s 3 of that Act.

37. The nature of, and the basis for, the immunity was discussed in Fingleton. After referring to Sirros v Moore [1975] QB 118 at 132 and In reMcC (A Minor) [1985] AC 528 at 540, Gleeson CJ stated (at [38]-[39]):

[38] This immunity from civil liability is conferred by the common law, not as a perquisite of judicial office for the private advantage of judges, but for the protection of judicial independence in the public interest. It is the right of citizens that there be available for the resolution of civil disputes between citizen and citizen, or between citizen and government, and for the administration of criminal justice, an independent judiciary whose members can be assumed with confidence to exercise authority without fear or favour. As O'Connor J, speaking for the Supreme Court of the United States, said in Forrester v White, that Court on a number of occasions has ”emphasised that the nature of the adjudicative function requires a judge frequently to disappoint some of the most intense and ungovernable desires that people can have”. She said that ”[i]f judges were personally liable for erroneous decisions, the resulting avalanche of suits … would provide powerful incentives for judges to avoid rendering decisions likely to provoke such suits”.

[39] This does not mean that judges are unaccountable. Judges are required, subject to closely confined exceptions, to work in public, and to give reasons for their decisions. Their decisions routinely are subject to appellate review, which also is conducted openly. The ultimate sanction for judicial misconduct is removal from office upon an address of Parliament. However, the public interest in maintaining the independence of the judiciary requires security, not only against the possibility of interference and influence by governments, but also against retaliation by persons or interests disappointed or displeased by judicial decisions.

[Footnote omitted.]

38. It may be emphasised, in this respect, that the then Chief Justice stated that the immunity from civil liability was not one for the private advantage of judges but for the protection of judicial independence in the public interest (at [38]).

39. The State of NSW also placed reliance upon the decision of Adamson J in Hammond v The State of New South Wales [2013] NSWSC 1930 where her Honour summarily dismissed proceedings as an abuse of process. In that matter, Adamson J addressed judicial immunity as an additional factor relevant for the consideration of a summary dismissal application. She summarised the relevant principles at [63] and [64] as follows:

[63] It is well established that no action or suit for damages is maintainable against a judicial officer for anything said or done by him or her in the exercise of his or her judicial functions: Kirby P in Rajski v Powell (1987) 11 NSWLR 522 at 535–537. Judicial immunity is regarded as an ‘essential corollary of judicial independence’: Wentworth v Wentworth [2000] NSWCA 350; 52 NSWLR 602 at 609 per Fitzgerald JA. The doctrine of judicial immunity extends to Registrars performing judicial functions in the exercise of the court's jurisdiction and powers: Wentworth v Wentworth; Scanlon v Director-General Department of the Arts Sport and Recreation [2007] NSWCA 204; 70 NSWLR 1 at 25. It also extends to judicial officers performing "administrative functions intimately associated with judicial duties": Towie v State of Victoria [2008] VSC 177; 19 VR 640 at [59].

[64] Proceedings instituted against judicial officers in contravention of judicial immunity ought be summarily dismissed, whether on the ground that they amount to an attempt to re-litigate issues that have already been heard and determined to finality (Bar-Mordecai v Bryson [2002] NSWSC 815; Attorney General v Bar-Mordecai [2005] NSWSC 142 at [65]-[66]) or because they are otherwise an abuse of process.

40. The State of NSW correctly contended that, in Hammond, her Honour considered whether the State was vicariously liability for the conduct of judges whilst exercising judicial power. Her Honour held that it was not (at [69]). Her Honour was also not persuaded that the State of NSW was vicariously liable for actions of a judicial officer falling within judicial immunity because (at [70]):

… in carrying out those functions, judicial officers are neither acting as servants of the Crown nor in its service, but as independent judicial officers: Towie v Victoria (2008) 19 VR 640 at [60]; see also Rajski v Powell at 530-531 per Kirby P”.

41. Leave to appeal from her Honour’s decision was refused: Hammond v State of New South Wales [2015] NSWCA 304. With respect, I accept and adopt her Honour’s reasoning in the present matter.

42. For completeness, and before turning to the contentions regarding a breach of Div 274 of the Commonwealth Criminal Code, reference should be made to the judgment of Garling J in Lazarus v DPP (No 1) (see ASOC at [61] to [65]). Any attempt to impugn his Honour’s approach in that respect would also attract judicial immunity rendering the claims, based on such conduct, if there be any proper basis, able to be dismissed for the reasons given above.

Division 274 of the Commonwealth Criminal Code

43. The provisions of Div 274 of the Commonwealth Criminal Code, or particularly the breach thereof, were relied upon by Ms Lazarus to represent an exception to judicial immunity in order to maintain a cause of action against Magistrate Keogh under the ASOC. That submission is not available for six reasons.

43. First, the provision does not give rise to a private cause of action for damages in the manner contended by Ms Lazarus. Even if the commission of the offence of torture by Magistrate Keogh in respect of the events of 27 November 2014 or 27 April 2015 were proved, this would not entitle Ms Lazarus to a remedy in the form of damages from any of the defendants.

44. Secondly, a contravention only arises under s 274.2 of the Commonwealth Criminal Code when the conditions specified in ss 274.2(1)(a), (b) and (c) are established. Ms Lazarus has not pleaded any of the conduct referred to in s 274.2(1)(b). Nor is there any indication that such pleadings could be made out in the circumstances of this matter.

45. Thirdly, for the purposes of ss 274.2(2)(a) and (b) (and assuming that Magistrate Keogh has one of the capacities in s 274.2(2)(c)), the perpetrator of an offence under this provision must engage in conduct that inflicts severe physical or mental pain or suffering on a person, and the conduct is engaged in for any reason based on discrimination of any kind. No pleading to this effect is found in the ASOC. Further, I agree with the submission of the State of NSW that neither of those limbs of s 274.2(2) could be made out in respect of Magistrate Keogh’s conduct on 27 November 2014 or 27 April 2015.

46. Fourthly, s 274.2(4) stipulates that “[s]ubsections (1) and (2) do not apply to conduct arising from, inherent in or incidental to lawful sanctions that are not inconsistent with the Articles of the International Covenant on Civil and Political Rights”. Insofar as Ms Lazarus complains of conduct by Magistrate Keogh consisting of orders that resulted in her spending time in custody, the conduct complained of plainly falls within the exception in sub-s (4). The orders resulted in the imposition of a conviction on the first occasion and the process of sentencing and appeal granted on the second occasion (including the grant of bail).

47. Fifthly, Ms Lazarus relies upon the provisions of s 274.2(3) to argue for an exception of principles of judicial immunity. This misunderstands the notion of absolute liability and its connection to mens rea requirements.

48. Sixthly, it follows that even if Div 274 represented an exception to the principle of judicial immunity, it has no relevance or impact in the current context.

International Treaties or Conventions

50. Paragraphs 82, 83, 85, 89 and 90 of the ASOC rely upon, in addition to ss 274.1 and 274.2 of the Commonwealth Criminal Code, the international treaties and conventions referred to in those prayers for relief.

51. It is well established that the provisions of a treaty to which Australia is a party does not form part of Australian law unless those provisions have been validly incorporated into domestic or municipal law by statute: Chow Hung Ching v The King (1948) 77 CLR 449 at 478-479 per Dixon J; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286-287 per Mason CJ and Deane J; and Tajjour v New South Wales (2014) 254 CLR 508; [2014] HCA 35 ("Tajjour") at [96] per Hayne J. In Tajjour, French CJ referred to this as the "long accepted dualism of international law and Australian domestic law" (at [48]). Accordingly, "the rights and obligations contained in the [International Convention on Civil and Political Rights] are not incorporated into Australian law unless and until specific legislation is passed implementing the provisions": Dietrich v The Queen (1992) 177 CLR 292 at 305 per Mason CJ and McHugh J; see also Dawson J (at 348-349), and Toohey J (at 359-60).

52. The same observations may be made with respect to other international conventions, the contravention of which is relied upon as giving rise to a cause of action. References were made to the Australian Constitution under the heading ‘Cause of Action’ in the ASOC but there was no particular provisions eluded to which the defendants were said to have breached.

Adverse Action

53. In para 83 of the ASOC, Ms Lazarus contended that conduct “set out in the above paragraphs” constituted adverse action by the defendants against her and was unlawful pursuant to, inter alia, the terms of the Disability Discrimination Act 1992 (Cth). In para 85, Ms Lazarus pleaded that the conduct set out in para 57 of the ASOC constituted adverse action by the defendants against her in terms of, inter alia, the Anti-Discrimination Act and the Racial Discrimination Act 1975 (Cth).

54. In para 57, Ms Lazarus contended that Magistrate Keogh had misrepresented the evidence in stating that she could speak “Hindi”. In both paras 83 and 85 of the ASOC, Ms Lazarus contended that the conduct of the defendants was unlawful for the purposes of the statutes identified in those paragraphs.

55. Having provided that summary of the ASOC, it may be readily concluded that Ms Lazarus did not, in her pleadings, disclose the source of any right in her to apply to this Court alleging adverse action pursuant to the Commonwealth statutes referred to in those pleadings. Further, there is no allegation of the making of any complaint in accordance with the Australian Human Rights Commission Act 1986 (Cth).

56. The significance of this omission is that the process of obtaining redress under the nominated federal statutes in the ASOC for unlawful discrimination is set out in Part IIB of the Australian Human Rights Commission Act. No such process is identified or application made (or terminated) in the ASOC. Without such process having been undertaken in the Human Rights Commission, there is no available relief in the applicable Court to deal with such matters, namely the Federal Court or the Federal Circuit Court: see Carreon v The Honourable Amanda Vanstone [2005] FCA 865 at [11].

57. A similar outcome follows with respect to a claim for adverse action contrary to the Anti-Discrimination Act because Ms Lazarus does not claim to have or have been entitled to make a complaint pursuant to Part 9 of that Act. Nor has she identified any jurisdiction in this Court to grant remedies in respect of such adverse action.

58. It follows that to the extent the ASOC alleges “adverse action” either in the federal or state legislative spheres, and claims damages as a result, it gives rise to no reasonable cause of action

Jurisdictional Errors

59. In para 84 of the ASOC, it is contended that the conduct earlier described in the ASOC constituted jurisdictional errors by Magistrate Keogh under various statutes. It is unclear whether the reference is to the pleading in paras 82 and 83 appearing immediately above this paragraph under the heading “Cause of Action” or the entirety of the preceding paragraphs.

60. In any event, this pleading discloses no cause of action. Neither an action for judicial review or relief in the nature of prerogative or constitutional writs (found upon jurisdictional error) give rise to an entitlement to damages: State of New South Wales v Paige (2002) 60 NSWLR 371; [2002] NSWCA 235 at [172] and [175] (per Spigelman CJ). In particular, judicial review is not concerned with the protection of individual interest but with the extent of exercise of power and the legality of its exercise: Baker v New South Wales Police [2013] NSWSC 57 at [8] (per Latham J) relying upon Attorney General (NSW) v Quin (1990) 170 CLR 1 at 36.

Matters Earlier Litigated

61. As earlier mentioned, the State of NSW also placed reliance upon the provisions of r 13.4(1)(c) of the UCPR upon the basis that Ms Lazarus sought to re-litigate issues that had been determined by this Court. Whilst it is strictly unnecessary to resolve that issue in view of the conclusions I have reached (namely, that the ASOC discloses no reasonable cause of action), I will briefly touch on the issue.

62. The gravamen of the State of NSW’s contentions in this respect was that, by reference to particular paragraphs within the ASOC, the proceedings brought by Ms Lazarus constituted an abuse of process.

63. The State of NSW contended that the decision of Garling J in Lazarus v DPP (No 1) dealt with proceedings brought by Ms Lazarus against the Local Court in which Ms Lazarus sought orders in the nature of prerogative relief in respect of Magistrate Keogh declining to recuse herself in relation to Ms Lazarus’s application that she do so, findings of errors in fact finding by Magistrate Keogh in her reasons, breaches of procedural fairness, a contravention of the Disability Discrimination Act and a claim said to arise out of the incident of 27 November 2014 where the Ms Lazarus was placed in custody. It is also central to the State of NSW’s contentions in this respect that Garling J’s refusal of the relief sought by Ms Lazarus was not reversed in the Court of Appeal in Lazarus v DPP (No 2). That Court denied leave to appeal in respect of his Honour’s judgment.

64. Having carefully considered the judgment of Garling J in Lazarus v DPP (No 1), the following submission of the State of NSW may be accepted:

To the extent that the ASOC seeks to relitigate claims concerning Magistrate Keogh’s determination of the application that she recuse herself on 8 October 2014 (ASOC at [39]-[40]), or concerning her Honour’s alleged “disregard” of the evidence of Mr Anderson (ASOC at [49]-[50]), or her reference to the plaintiff’s evidence completion of “hundreds of trials” (ASOC at [54]), or her erroneous reference to the plaintiff having referred in her evidence to a “trained monkey” (ASOC at [55]), or Magistrate Keogh’s alleged involvement in the “torture” of the plaintiff on 27 November 2014, including a claimed contravention of the Disability Discrimination Act 1992 (Cth) (ASOC at [51]-[53], [58], [60], [83]), the proceedings constitute an abuse of process, either because they constitute an attempt to relitigate issues already determined adversely to the plaintiffs and subject to the principles of res judicata, or because an issue estoppel would arise in respect of those claims having regard to the proceedings before Garling J (in both respects, at least in regard to the [Local Court]).

65. I also accept the submission that abuse of process arises insofar as the ASOC alleges errors of Garling J (see ASOC [61] and [65]) having regard to the determination of the Court of Appeal with respect to his Honour’s judgment in Lazarus v DPP (No 2).

CONCLUSION

66. Having regard to the aforementioned reasons, I consider that no reasonable cause of action is disclosed by the ASOC. The proceedings are also an abuse of process insofar as they re-litigate issues the subject of proceedings in Lazarus v DPP (No 1) from which judgment leave to appeal was refused.

67. It is appropriate that summary dismissal be granted in the circumstances. It is not appropriate to permit a re-pleading of the ASOC as the pleadings are not amendable to rectification in that way. Within the framework of the matters pleaded, and even with legal assistance, the proceedings could not give rise to a cause of action in respect of the pleaded conduct of Magistrate Keogh.

68. In those circumstances, it is appropriate that the first and third prayers for relief of the notice of motion be granted.

69. Submissions were not received as to the fourth prayer for relief of the notice of motion (namely, “the Plaintiff to pay the [State of NSW]’s costs of the proceedings”) sought in the State of NSW’s notice of motion, save for a brief reference to that order in the final sentence of the written submissions for the State of NSW. It would be appropriate for short further submissions to be advanced in that respect by the State of NSW and Magistrate Keogh including whether it is appropriate to give any opportunity for Ms Lazarus to be heard in that respect alone. The consideration of any such issue can await the making of orders with respect to the orders sought in the first and third prayers for relief of the motion (with any further submissions being filed within 14 days of the making of those orders). Costs under the fourth prayer for relief are reserved in that respect.

DIRECTIONS

70. The State of NSW shall bring in short minutes of order reflecting this judgment within 14 days of publication.

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Decision last updated: 28 June 2018