Lazarus v Northern Sydney Local Health District

1. [1]

   On 18 January 2021, Sandra Lazarus (“the first plaintiff); Michelle Lazarus (“the second plaintiff”) and Jessica Lazarus (“the third plaintiff”) (collectively, “the plaintiffs”) filed a summons (“the summons”) seeking judicial review of a default judgment entered by the Court on 27 October 2020 against the first plaintiff. The summons was supported by an affidavit of Leigh Johnson “sworn or affirmed” on 16 January 2021.

2. [2]

   By a Notice of Motion (“the Motion”) filed on 26 February 2021, the Northern Sydney Local Health District (“NSLHD”) and the South Eastern Sydney Local Health District (“SESLHD”), sought the dismissal of the summons pursuant to r 13.4(b) of the Uniform Civil Procedure Rules 2005 (NSW)(“UCPR”).

3. [3]

   An application to adjourn the hearing of the Motion (on 16 April 2021) was listed before Harrison As J on 15 April 2021. The applicants were then represented by a solicitor.

4. [4]

   Her Honour granted the adjournment and relisted the Motion for the hearing on 27 May 2021. Her Honour ordered that “no further adjournments should be granted”.

5. [5]

   After the matter was adjourned and before receipt of the supplementary submissions of the defendants, the plaintiffs forwarded by email to the Court an “Amended Summons (Judicial Review)” (the “amended summons”) and a “Notice of Constitutional Matter under s 78B of the Judiciary Act 1903 (Cth)”.

6. [6]

   In an email accompanying the amended summons, the plaintiffs stated the reasons they were unrepresented litigants (and why they needed additional time to file submissions) were due to:

7. [7]

   The amended summons was not filed in the court. No leave was given to do so.

8. [8]

   Prior to the matter being relisted the Court sent a note to the plaintiffs reminding them of the decision and order made by Harrison As J.

9. [9]

   Notwithstanding the basis upon which Harrison As J granted an adjournment, the plaintiffs filed a written submission concerning the Motion, stating that they would not appear on 27 April 2021 because of, inter alia, “the prolonged and systemic abuse inflicted upon the three Mss Lazarus by Judicial Officers presiding over Lazarus judicial proceedings”. That communicated a deliberate decision on the plaintiffs’ part not to appear on the date listed for the hearing of the Motion. Unlike the earlier communication referring to the need for pro bono legal assistance and time to prepare submissions because of the self-represented status of the plaintiffs, the written submissions also indicated that the plaintiffs had in fact, prepared a submission in opposition to the Motion but had chosen not to appear to prosecute the contentions in the submissions.

10. [10]

    When the Motion was called on 27 May 2021, the plaintiffs’ were called and no appearance was entered. The matter proceeded ex parte although with the concurrence of the defendant, the plaintiffs’ written submissions were taken into account.

11. [11]

    Bearing in mind those submissions had a relationship to the amended summons the defendants were given an opportunity to provide their oral submissions in a consolidated written form to, inter alia, reply to the plaintiffs’ written submissions. No leave was granted to rely upon the amended summons.

Factual background

1. [12]

   On 21 July 2014, NSLHD and SESLHD filed a statement of claim in the Supreme Court with proceedings number 2014/214502 (“the proceedings”).

2. [13]

   The proceedings allege, inter alia, the first plaintiff falsely and fraudulently represented to NSLHD and SESLHD that her companies had provided goods and services to the Local Health Districts. It is further alleged that the second plaintiff aided and abetted the first plaintiff in relation to the defrauding of NSLHD.

3. [14]

   The proceedings were adjourned pending completion of criminal proceedings and various appeals and applications for judicial review arising from those criminal proceedings brought by the first plaintiff.

4. [15]

   Criminal proceedings against the first plaintiff were commenced in the Local Court on 1 March 2013.

5. [16]

   On 27 November 2014, the first plaintiff was found guilty, after a defended hearing before Magistrate Keogh, of 16 offences against s 178BB of the Crimes Act 1900 (NSW) and of 28 offences against s 300(1) of that Act.

6. [17]

   The first plaintiff then moved the Supreme Court to quash her convictions and to prohibit the Magistrate from proceeding to sentence her. That application was dismissed by Garling J on 16 April 2015: Lazarus v Director of Public Prosecutions (NSW) [2015] NSWSC 426.

7. [18]

   On 27 April 2015, Magistrate Keogh sentenced the first plaintiff to a total effective sentence of one year and nine months, and an effective non-parole period of one year and four months.

8. [19]

   On 27 April 2015, the first plaintiff filed a Notice of Appeal to the District Court against her convictions and sentence. Bail was granted that day and accordingly, execution of that sentence was stayed until determination of the appeal to the District Court: s 63(3) of the Crimes (Appeal and Review) Act 2001.

9. [20]

   On 19 June 2017, King DCJ heard and dismissed the first plaintiff’s application to adduce fresh evidence on the hearing of her conviction appeal.

10. [21]

    On 20 June 2017, Conlon DCJ summarily dismissed the first plaintiff’s conviction appeal in light of her failure to appear. The severity appeal was adjourned to 28 June 2017.

11. [22]

    The first plaintiff then sought that the order dismissing her conviction appeal be set aside and a further order that the District Court rehear that appeal. That application was dismissed by Hoy DCJ on 18 August 2017.

12. [23]

    On 12 December 2017, Hoy DCJ determined the severity appeal by varying the non-parole period of the sentences on certain counts, thereby reducing it by three months. The total effective sentence remained untouched.

13. [24]

    The first plaintiff then commenced proceedings in the Court of Appeal which included a challenge by way of judicial review concerning the decisions of Conlon DCJ and Hoy DCJ. On 8 May 2019 the Court of Appeal dismissed the first plaintiff’s application: Lazarus v Independent Commission Against Corruption [2019] NSWCA 100 (“Lazarus v ICAC”).

14. [25]

    The second plaintiff joined in the action to the Court of Appeal. The appeal was dismissed.

15. [26]

    On 21 September 2020, the defendants filed the motion seeking default judgment be entered against the first plaintiff.

16. [27]

    On 27 October 2020, the Court entered default judgment against the first plaintiff in favour of NSLHD in the amount of $733,355.59 and in favour of SESLHD in the amount of $212,659.43.

17. [28]

    The judgments dated 27 October 2020 only relate to the first plaintiff. No reason has been demonstrated for the second and third plaintiffs to be joined to these proceedings as they are presently formulated. Nonetheless, as a joint submission was filed the Court will consider the submissions of each of the plaintiffs.

Evidence in the proceedings

1. [29]

   The defendants relied on the following evidence in support of their application:

   1. (1)

      affidavit of Alexander Trevena sworn 26 February 2021 (“First Trevena Affidavit”); and

   2. (2)

      affidavit of Alexander Trevena sworn 23 March 2021 (“Second Trevena Affidavit”).

2. [30]

   The Court admitted Ms Johnson’s affidavit but only with a view to the material received which was relied upon in support of the summons. Otherwise the affidavit was treated as a submission.

Relevant principles

1. [31]

   Rule 13.4 of the UCPR provides as follows:

2. [32]

   A cause of action is any suit, action, matter or other similar proceeding competently brought before and litigated in a particular court: Green v Lord Penzance (1880-81) LR 6 App Cas 657 at [671] per Lord Selborne LC; Ex parte Walsh; Re Yates (1925) 37 CLR 36 at 131. It is all the facts and circumstances necessary to give rise to a right to relief in law or equity; Papps v Mahon [1966] NZLR 288 at [292]. A given set of alleged facts and circumstances will either give rise to a cognisable cause of action or it will not: see Paul Ernest Simmons v Protective Commissioner of NSW (also known as NSW Trustee and Guardian) [2012] NSWSC 455 (“Simmons”) per Hammerschlag J at [55].

3. [33]

   The power to dismiss claims at an interlocutory stage of the proceedings is only appropriately exercised where the plaintiff’s claim is so clearly deficient that it would be inappropriate to allow the proceedings to continue: Cox v Journeaux (No 2) (1935) 52 CLR 713 at [720] (concerning “very likely” unsustainable allegations of conspiracy and fraud).

4. [34]

   The authorities consistently emphasise the exceptional nature of the power, and the correspondingly restricted circumstances in which its exercise is appropriate: Co-ownership Land Development Pty Ltd v Queensland Estates Pty Ltd (1973) 1 ALR 201.

5. [35]

   Nevertheless, summary dismissal may be granted, notwithstanding that extensive legal argument may be necessary to demonstrate the hopelessness of the claim: General Steel Industries Inc v Cmr for Railways (NSW) (1964) 112 CLR 125 at [129].

6. [36]

   Furthermore, the dismissal power may not be confined to proceedings that are demonstrably certain to fail: Simmons at [52]–[64]. In Simmons, Hammerschlag J held at [58]-[60] and [64]:

Lazarus v Kane

1. [37]

   The first plaintiff has previously brought judicial review proceedings in the Court of Appeal case of Lazarus v Kane [2019] NSWCA 194 (“Kane”) where arguments as to Chapter III of the Constitution and the International Covenant on Civil and Political Rights (“ICCPR”) were advanced.

2. [38]

   The Court of Appeal’s judgment in those proceedings dated 7 August 2019 dispenses with those arguments.

3. [39]

   In response to an allegation of breach of the Constitution, Basten JA (Bell P and Meagher JA agreeing) held at [14]:

4. [40]

   In response to an allegation of breach of the ICCPR, it was held at [15]:

Submissions regarding the summons filed 18 January 2021

1. [41]

   The plaintiffs, in their summons filed 18 January 2021, sought judicial review and relief on the following bases:

2. [42]

   In their consolidated written submissions, the defendants responded to each ground raised by the plaintiffs in their summons filed on 18 January 2021. In my view, the submissions represent a compelling repudiation of the grounds for the summons. I will turn to each in turn.

The Grounds of the Summons

1. [43]

   As was considered in Kane (at [14]), there is no jurisdiction for the Court to deal with a constitutional objection and in any event, no correlation between the Constitution and r 16.6 UCPR (the power to enter default judgment).

2. [44]

   I accept the contention by the defendants that this ground of the plaintiffs’ summons was disordered. The defendants noted that s 5 of the Independent Commission Against Corruption Act 1988 (NSW) (“ICAC Act”) deals with the number and powers of Commissioners; s 6A deals with appointment of Assistant Commissioners of the Commission; s 64A deals with the power to veto a proposed appointment of a Commissioner or Inspector by a Joint Committee and cl 2 of Sch 1 deals with veto of a proposed appointment of a Commissioner. Sections 8, 9 and Sch 4 of the Oaths Act 1900 (NSW) relate to oaths taken by judicial officers.

3. [45]

   The defendants correctly contended that the plaintiffs made no articulation on how the sections of these disparate Acts are relevant to each other, or relevant to a default judgment entered under the UCPR. The plaintiffs needed to make good a prima facie connection or some form of reviewable error, sufficient to make an arguable case. The defendants are correct to submit there is no such connection nor attribution to a reviewable error.

4. [46]

   Section 8 of the ICAC Act defines “corrupt conduct” under that Act but the ground does not advance beyond that point. No reference to error was made. To the extent the Constitution is mentioned, the defendants correctly relied upon their earlier submission.

5. [47]

   The defendants contended that ground 4 appears to be some form of commentary on s 8 of the ICAC Act and ss 8 and 9 and Sch 4 of the Oaths Act. It is not relevant to a question to be considered by this Court.

6. [48]

   No cause of action is established by reference to the ICCPR. Further, the interaction of the ICAC Act to that Covenant has no bearing to the default judgment entered 27 October 2020.

7. [49]

   The defendants correctly sought to repeat their submissions as above regarding the irrelevance of the ICCPR.

8. [50]

   The defendants contended that in this ground, there are six legislative instruments that are cited, including the whole of the Constitution and various Acts of Parliament, but again no specificity as to how they are relied upon to establish error. I agree.

9. [51]

   Section 26 of the ICAC Act provides the usual protection against self-incrimination in relation to the Commission’s compulsive powers. There is no issue of that matter with respect to those proceedings. The evidence relied upon in support of the Motion for default judgment is annexed to the First Trevena Affidavit as annexure A. Annexure A consists of two affidavits from employees of the applicants on the motion satisfying the requirements of r 16.6(2) UCPR in relation to the affidavit in support (including stating the source of the deponent’s knowledge of the matters concerning the debts). The defendants correctly contended that there is no other relevant provisions in the instruments cited that have relevance and no basis to assert that evidence collected during Independent Commission Against Corruption (“ICAC”) enquiries and investigations (in general) cannot be used in proceedings in a court of law.

10. [52]

    The defendants correctly contended that ground 8 appeared to be based on an assertion of fact that is not made good in evidence. They further contended that there is also no clear correlation between that assertion of fact, the instruments cited generally and where that makes good any reviewable error.

11. [53]

    In any event, there is no prospective assessment by the Court of the evidence at the time of filing, and therefore this raises no issue of jurisdiction or reviewable error.

12. [54]

    The defendants submitted that this ground, and all the grounds contended by the plaintiffs, lacks the cogency and comprehensibility that is required to make an arguable point as to jurisdiction or reviewable error. It was contended that there was no articulation as to how the oaths taken by judicial officers, the Constitution and the ICCPR were relevant to any reviewable error, and as respectfully submitted by the defendants, they cannot be. These propositions are unarguably correct.

13. [55]

    The Local Health Districts’ statement of claim in proceedings 2014/214502 was filed on 21 July 2014 and was served on the first plaintiff on 13 October 2014. The defendants contended that the first plaintiff did not file a defence within the time provided by r 14.3 UCPR (or ever). The first plaintiff has not appeared in the proceedings since at least April 2015. Those propositions were supported by the First and Second Trevena Affidavits.

14. [56]

    Further, the Court record will show a failure to file a defence since the first plaintiff was served with the statement of claim on 12 October 2014. Judgment was entered, therefore, in default and the first plaintiff forwent her right of determination on the merits.

15. [57]

    In these circumstances the first plaintiff cannot reasonably allege she was deprived of an opportunity to meaningfully engage in the proceedings or be heard.

16. [58]

    The first plaintiff has not developed any ground based in the reasoning of Dietrich v The Queen (1992) 177 CLR 292 that establishes any argument in relation to a reviewable error.

17. [59]

    The defendant contended that the judgments of 27 October 2020 were entered by the Registrar, rather than a primary judge. In any event, this ground does not specify how the Registrar erred in fact or law or how the proceedings were jurisdictionally erroneous.

18. [60]

    Section 23 of the Supreme Court Act 1970 (NSW) provides that the Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales. The jurisdiction to grant equitable remedies is found in s 58 of the Act. The default judgment was applied for in reliance on the tort of deceit. Section 62 of the Act provides the Court jurisdiction to rely upon common law rights. By virtue of s 5 of the Civil Procedure Act 2005 (NSW), nothing in that Act or the UCPR limits the jurisdiction of the Supreme Court.

19. [61]

    With respect to the argument the proceedings were commenced without valid grounds and valid evidence, the defendants repeated their submissions concerning there being no duty on the Court to take a prospective view of the evidence and therefore no error was made by it. In addition, it was noted that the first plaintiff was convicted of criminal offences relating to some of the same matters pleaded by the applicants on the motion (see for example Lazarus v ICAC at [11]-[16], [18]-[19]).

20. [62]

    The defendants repeated their submission in response to ground 10. The first plaintiff did not develop any ground from Jago v The District Court of NSW (1989) 168 CLR 23 that establishes any argument in relation to a reviewable error. There can be no proper basis to assert a denial of natural justice is fanciful.

21. [63]

    The power to enter default judgment in the present context is r 16.6 UCPR. The plaintiffs have not led any submissions as to how the Court’s exercise of its power under this rule is jurisdictionally erroneous.

The Plaintiffs’ Submission

1. [64]

   I have considered the plaintiffs’ filed submissions in reply to the defendants’ submissions by email on 20 May 2021 particularly with a view to ascertaining whether they may shed a light on the plaintiffs’ summons other than may be gleaned from the face of the summons. The submissions were not entirely clear but I have considered them in the light of the following submissions of the defendants which I consider grapple with the thrust of the plaintiffs’ submissions and indicate why the plaintiffs’ submissions do not warrant any difference conclusion be reached with respect to the grounds of the summons.

2. [65]

   Reference was made to the application brought by the defendants for compensation pursuant to s 97 of the Victims Rights and Support Act 2013 (NSW). The District Court found that it did not have jurisdiction to consider the application as it was not the court that convicted the first plaintiff, irrespective of the conviction and sentence appeals disposed of in that court. This was not disturbed on review: South Eastern Sydney Local Health District v Lazarus [2020] NSWCA 183. The proceedings were confined to consideration of a very narrow jurisdictional point.

3. [66]

   Civil proceedings 2014/214502 had been running concurrently with the Lazarus sisters’ criminal proceedings and subsequent appeals. The Lazarus sisters had not been participating in those proceedings for a lengthy period. Contrary to the plaintiffs’ submission, the criminal judgment was not utilised in the default judgment application. The materials relied upon to support the application for default judgment are contained in Annexure A to the First Trevena Affidavit.

4. [67]

   This paragraph of the plaintiffs’ submission makes reference to the “official communication to the International Criminal Court” which is Annexure 1 to the affidavit of Ms Johnson. That communication has been admitted into evidence as accompanying a submission. In essence, it repeats complaints:

   1. (1)

      of the civil proceeding being “beyond jurisdiction”;

   2. (2)

      of evidence collected in the ICAC process being “inadmissible in a court of law”;

   3. (3)

      that the defendants commenced civil proceedings that are “jurisdictionally erroneous”;

   4. (4)

      that references the defendants’ s 97 Victims Rights and Support Act 2013 (NSW) compensation application and review;

   5. (5)

      the civil proceedings were commenced invalidly; and

   6. (6)

      the entry of the default judgments are an abuse of the human rights of the Mss ”Lazarus”.

5. [68]

   There is no foundation for the contentions in this communication nor any evident correlation with the proper formulation of the question presently before the Court.

6. [69]

   It was suggested in this paragraph that tracing remedies are the only relief sought in proceedings 2014/214502. This is inaccurate as there are claims in those proceedings for accounting, equitable compensation and for damages.

7. [70]

   Whilst the plaintiffs were defendants in proceedings 2014/2145023, the judgment entered on 27 October 2020, the subject of the Judicial Review application, relates to the first plaintiff.

8. [71]

   Reference was made to ICAC not being bound by the rules of evidence and s 38 of the ICAC Act which simply streamlines the well-known protocol entrenched in s 37 of that Act, prohibiting witnesses from refusing to answer questions or produce documents in compulsory examinations or public enquires. However, the section makes such answers or documents inadmissible against the person in criminal or civil proceedings. No answers given, or documents produced by the first plaintiff, were sought to be adduced in evidence in the civil proceedings. The suggestion that nothing in the original investigation by ICAC officers can be utilised at all is misconceived. The section stands as a protection for an examinee who is compelled to answer questions from having those compulsorily given answers (or documents) utilised against them in court proceedings contrary to the right to silence.

9. [72]

   The plaintiffs submitted that utilising evidence “raised” in the Commission gives rise to matters within Chapter III of the Constitution. The defendants repeated their submission made earlier regarding jurisdiction and further questioned what could possibly arise in the Chapter of the Constitution that creates and governs the High Court.

10. [73]

    Reliance was placed on Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 (21 May 2014). There is no principle in that authority that assists the position of the first plaintiff. In short, the facts of that matter were that a transcript of the evidence of an examinee was published to the DPP against the terms of a non-publication order made by the NSW Crime Commission. Because it was found that the use of the evidence had given the Crown a forensic advantage which it ought not to have had, a new trial was ordered.

11. [74]

    The plaintiffs again made a broad assertion regarding ICAC transcripts and evidence collected at ICAC as being inadmissible in a court of law. In respect of some transcripts taken of ICAC hearings, this is accurate. However, there was no such use in the present instance and the plaintiffs did not once make specific reference to a use that they say is impermissible by reference to an affidavit or document which they assert is compulsorily acquired.

12. [75]

    As to the contention that evidence from the defendants’ own officers, voluntarily given by them, about the quantum of the defendants’ loss (being the only possible application of the plaintiffs’ argument in the present circumstances) is just plainly wrong. The corollary of that argument is that all evidence that may be used by a prosecuting authority, be it civil or criminal, is inadmissible after being “raised” at ICAC.

13. [76]

    These paragraphs do not demonstrate a basis for the relief claimed by the plaintiffs and in many respects fall within observations earlier made in this judgment as to the grounds in the summons and the additional written submissions made by the plaintiffs.

Consideration

1. [77]

   In my view, the summons brought by the plaintiffs falls within the limited class of case where the originating process is so deficient as to warrant a conclusion that no reasonable cause of action is disclosed.

ORDERS:

1. [78]

   The Court makes the following orders:

   1. (1)

      Pursuant to rule 13.4(1)(b) of the UCPR the summons filed 18 January 2021 is dismissed.

   2. (2)

      The plaintiffs to pay the costs of the defendants as agreed or as assessed.