Lazarus v The State of New South Wales (No 2)

[2018] NSWSC 1612

Supreme Court

New South Wales

Medium Neutral Citation:

Lazarus v The State of New South Wales (No 2) [2018] NSWSC 1612

Hearing dates:

16 February 2018

Date of orders:

25 October 2018

Decision date:

25 October 2018

Jurisdiction:

Common Law

Before:

Walton J

Decision:

The Court makes the following orders and directions:

 

(1) The plaintiff’s amended statement of claim filed 11 September 2017 be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW).

 

(2) The plaintiff to pay the first and third defendants’ costs of the notice of motion filed 15 September 2017.

 

(3) The State of NSW shall serve Ms Lazarus on or before Tuesday, 30 October 2018 at 4pm with a copy of this judgment, the judgment in Lazarus v The State of New South Wales [2018] NSWSC 998, the supplementary written submissions of the State of NSW and Magistrate Keogh and the short minutes of order.

 

(4) Ms Lazarus shall make any submissions as to the fourth prayer for relief of the notice of motion on or before Tuesday, 13 November 2018 at 4pm.

 (5) The Court shall determine the remaining question as to costs on the papers based upon the supplementary written submissions of the State of NSW and Magistrate Keogh and any written submissions received by Ms Lazarus in accordance with these directions.

Catchwords:

CIVIL PROCEDURE – amended statement of claim dismissed – costs of the notice of motion – directions

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Lazarus v The State of New South Wales [2018] NSWSC 998

Category:

Procedural and other rulings

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 three 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 notice of motion”), the State of NSW sought the following orders:

1. The plaintiff’s Amended Statement of Claim filed 11 September 2017 be dismissed pursuant to Rule 13.4(1) of the Uniform Civil Procedure Rules 2005.

2. In the alternative to order (1), the plaintiff’s Amended Statement of Claim filed 11 September 2017 be struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005.

3. The plaintiff to pay the costs of this motion.

4. The plaintiff to pay the first defendant’s costs of the proceedings.

5. Such further or other order as the Court may deem fit.

3. The Court delivered judgment on 28 June 2018, finding it was appropriate that summary dismissal be granted in the circumstances: Lazarus v The State of New South Wales [2018] NSWSC 998 (“Lazarus v NSW (No 1)”).

4. The Court made the following statements, findings and directions at [67]-[70]:

[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.

5. In response to those directions, the State of NSW and Magistrate Keogh provided short minutes of order on 12 July 2018, in the following terms:

1. The plaintiff’s Amended Statement of Claim filed 11 September 2017 be dismissed pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2005.

2. The plaintiff to pay the first and third defendants’ costs of the motion filed 15 September 2017.

3. The plaintiff to pay the first and third defendants’ costs of the proceedings.

6. Those defendants also provided supplementary written submissions, dated 12 July 2018, in accordance with the directions of the Court dealing with whether Ms Lazarus should be given an opportunity to make submissions on costs of the proceedings (being the fourth prayer for relief) and as to the merits of that application for costs.

7. As to the first consideration, the State of NSW and Magistrate Keogh made the following submissions:

2. The first and third defendants consider that it would be open to the Court not to provide the plaintiff with any further opportunity to make submissions. The plaintiff was on notice both that costs of the proceedings were sought (by the terms of the notice of motion itself) and that the matter was to be heard on 16 February 2018 (see the judgment at [4]-[5]). She may be said to have elected not to appear and to make no submissions in the matter.

3. However, the plaintiff has been appearing unrepresented in the matter and, for an abundance of caution, the first and third defendants would have no objection to her being given 14 days to put on short written submissions as to costs, with the matter then being determined on the papers. The first and third defendants would oppose any extension of that 14 day period.

8. Bearing in mind those submissions, the Court shall make directions affording Ms Lazarus the opportunity to make submissions confined to the fourth prayer for relief, namely, whether the first and third defendants should receive costs of the proceedings. The Court makes the orders proposed in terms of the first and second paragraphs of the aforementioned short minutes of order.

ORDERS AND DIRECTIONS

9. The Court makes the following orders and directions:

1. The plaintiff’s amended statement of claim filed 11 September 2017 be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW).

2. The plaintiff to pay the first and third defendants’ costs of the notice of motion filed 15 September 2017.

3. The State of NSW shall serve Ms Lazarus on or before Tuesday, 30 October 2018 at 4pm with a copy of this judgment, the judgment in Lazarus v The State of New South Wales [2018] NSWSC 998, the supplementary written submissions of the State of NSW and Magistrate Keogh and the short minutes of order.

4. Ms Lazarus shall make any submissions as to the fourth prayer for relief of the notice of motion on or before Tuesday, 13 November 2018 at 4pm.

5. The Court shall determine the remaining question as to costs on the papers based upon the supplementary written submissions of the State of NSW and Magistrate Keogh and any written submissions received by Ms Lazarus in accordance with these directions.

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Decision last updated: 26 October 2018