South Eastern Sydney Local Health District v Lazarus

1. [1]

   BELL P: On 18 March 2020, the South Eastern Sydney Local Health District (the First Applicant) and the Northern Sydney Local Health District (the Second Applicant) (together, the Applicants) filed a Summons seeking judicial review of a decision made by Russell SC DCJ (the primary judge) in the District Court of New South Wales on 19 December 2019.

2. [2]

   The decision the subject of the application for judicial review was one dismissing the Applicants’ Notice of Motion filed 30 May 2019 in the District Court which sought, pursuant to s 97(1) of the Victims Rights and Support Act 2013 (NSW) (the Act), directions that a specified sum (to be determined by the Court) be paid out of the property of Ms Sandra Lazarus (Ms Lazarus) to the Applicants, through and by reason of offences which “the Court convicted Ms Sandra Lazarus of on 12 December 2017”.

3. [3]

   Section 97 of the Act relevantly provides as follows:

4. [4]

   The primary judge held that the District Court did not have jurisdiction to make the directions sought because, although Ms Lazarus appealed to the District Court and the District Court made certain orders on 12 December 2017 (see further at [16] below), the District Court was not a court that convicted Ms Lazarus for the purposes of s 97(1) of the Act. Rather, his Honour held that Ms Lazarus was convicted of the relevant offences by the Local Court of New South Wales in 2014 and it was in that Court that directions for the payment of compensation could and should have been sought.

5. [5]

   It may be noted at this point that, by reason of s 98(b) of the Act, a court may not give a direction for compensation for an amount in excess of the maximum amount that, in its civil jurisdiction, the court is empowered to award in proceedings for the recovery of a debt. In the Local Court, that maximum amount is $100,000: Local Court Act 2007 (NSW) s 29(1). In the District Court, that maximum amount is $750,000: District Court Act 1973 (NSW) s 4(1).

6. [6]

   Pursuant to s 69 of the Supreme Court Act 1970 (NSW), the Applicants seek relief in the nature of certiorari, quashing the order of the District Court, a declaration that the District Court committed jurisdictional error in finding it did not have jurisdiction to make directions for compensation in favour of the Applicants, and an order remitting the matter to the District Court to be determined according to law. This is the sole ground of error alleged in the Summons for judicial review.

7. [7]

   No appearance was filed by Ms Lazarus. She is currently the subject of an outstanding warrant for arrest. On 11 May 2020, the Court made orders for substituted service of the Summons and White Folder on Ms Lazarus. Evidence was led confirming compliance with those orders. Ms Lazarus did not appear either in person or by audio-visual link or telephone at the hearing. The District Court, the Second Respondent to these proceedings, filed a submitting appearance save as to costs. As such, there was no contradictor. The solicitor for the Applicant drew the Attorney General’s attention to the proceedings, but the Attorney did not seek to intervene.

8. [8]

   Before turning to consider the jurisdictional question, a short summary of the history of the criminal proceedings against Ms Lazarus is required.

Background

1. [9]

   In 2010 and 2011, the Independent Commission Against Corruption conducted an investigation into corrupt conduct in two Sydney hospitals. Following completion of that investigation, criminal proceedings in the Local Court were commenced against Ms Lazarus on 1 March 2013.

2. [10]

   After a defended hearing, on 27 November 2014, Magistrate Keogh found Ms Lazarus guilty of 16 offences against s 178BB of the Crimes Act 1900 (NSW), and guilty of 28 offences against s 300(1) of the Crimes Act.

3. [11]

   Ms Lazarus brought proceedings in the Supreme Court of New South Wales 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: see Lazarus v Director of Public Prosecutions (NSW) [2015] NSWSC 426.

4. [12]

   On 27 April 2015, Magistrate Keogh sentenced Ms Lazarus to a total effective sentence of 1 year and 9 months’ imprisonment, and an effective non-parole period of 1 year and 4 months’ imprisonment. On the same day, Ms Lazarus filed a Notice of Appeal to the District Court against both her conviction and sentence. Bail was granted that day and execution of that sentence was stayed until determination of the appeal to the District Court, pursuant to s 63(3) of the Crimes (Appeal and Review) Act 2001 (NSW).

5. [13]

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

6. [14]

   On 20 June 2017, Conlon DCJ summarily dismissed Ms Lazarus’ conviction appeal in view of her failure to appear. His Honour adjourned the severity appeal to 28 June 2017.

7. [15]

   Ms Lazarus then sought that the order dismissing her conviction appeal be set aside, and that the District Court rehear that appeal. Hoy DCJ dismissed that application on 18 August 2017.

8. [16]

   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. As a result, the total effective sentence remained at 1 year and 9 months’ imprisonment, but the total effective non-parole period was reduced to 1 year and 1 month. The orders made by Hoy DCJ were relevantly as follows:

9. [17]

   On 13 July 2017, Ms Lazarus commenced proceedings in this Court by way of Summons, including a challenge by way of judicial review in relation to the decisions of Conlon DCJ and Hoy DCJ.

10. [18]

    On 8 May 2019, this Court dismissed Ms Lazarus’ application: see Lazarus v Independent Commission Against Corruption (2019) 343 FLR 260; [2019] NSWCA 100. Subsequent related decisions of this Court relating to warrants for Ms Lazarus’ arrest may also be noted: Lazarus v Director of Public Prosecutions (NSW) [2019] NSWCA 125; Lazarus v Kane [2019] NSWCA 194.

Statutory framework

1. [19]

   Central to these proceedings is s 97 of the Act, which has been extracted at [3] above. Section 97 is contained in Pt 6 Div 3 of the Act, styled “Compensation awarded by court”. Section 91 outlines the Object of Pt 6, being:

2. [20]

   Once a direction for compensation is made, it must be paid immediately by the offender (or within the time stipulated in the direction) to the Registrar of the Court, for payment to the aggrieved person: s 100 of the Act. If such compensation is not paid, a certificate issued by the Registrar may be filed and immediately entered as a judgment of the Court against the offender: s 101 of the Act.

3. [21]

   For reasons that will become clear, certain provisions of the Crimes (Appeal and Review) Act should also be noted. Section 20 of that Act provides:

4. [22]

   Section 68(1) of the Crimes (Appeal and Review) Act provides:

5. [23]

   The use of the language of “confirmation” in s 68(1) of the Crimes (Appeal and Review) Act does not correlate, at least in terms, with the means by which s 20 of the same Act contemplates that appeals from the Local Court to the District Court will be determined, i.e. setting aside, varying or dismissing. In this context, s 20 may be contrasted with s 133A of the Justices Act 1902 (NSW), before its repeal and replacement by the Crimes (Appeal and Review) Act. Section 133A of the Justices Act provided that:

The proceedings at first instance

1. [24]

   As outlined at [2] above, on 30 May 2019, the Applicants filed a Notice of Motion in the District Court seeking directions pursuant to s 97 of the Act that a specified sum be determined by the Court to be paid out of the property of Ms Lazarus by way of compensation for loss sustained “through and by reason of the offences the Court convicted Ms Sandra Lazarus of on 12 December 2017”.

2. [25]

   The primary judge noted (at [3]) that the jurisdictional question for determination was:

3. [26]

   At [10]-[18], under the heading “[w]hich court convicted Ms Lazarus?”, the primary judge said:

4. [27]

   His Honour then set out the terms of s 20 of the Crimes (Appeal and Review) Act, which have been extracted at [21] above, and continued:

5. [28]

   It may be observed from the extract at [16] above that Hoy DCJ, in making his order on 12 December 2017, purported to “confirm” each conviction.

6. [29]

   The primary judge concluded:

7. [30]

   The primary judge noted that, if his Honour’s conclusion that the District Court had no jurisdiction was successfully appealed, the evidence established that the First Applicant was entitled to a direction that $199,000 be paid to it out of the property of Ms Lazarus, and that the Second Applicant was entitled to a direction that $234,300 be paid to it out of the property of Ms Lazarus: at [24].

8. [31]

   Whether such amounts could be awarded in the Local Court, given the monetary jurisdictional limit noted at [5] above, was not the subject of argument. There might be a nice question as to whether or not, given the number of offences, the amounts referred to by the primary judge as noted at [30] above could be disaggregated with individual amounts within the Local Court’s jurisdictional monetary limits referable to specific offences directed to be paid by way of compensation. In this context, it should also be recalled that, even if this course were not available, it would be open to the Applicants to seek to recover any amounts stolen in civil proceedings against Ms Lazarus.

Consideration

1. [32]

   In essence, the Applicants contended that the appeal to the District Court and, in particular, the order of Hoy DCJ confirming each conviction (see [16] above) superseded the orders of the Local Court, so that it could be said that Ms Lazarus was convicted by the District Court on 12 December 2017.

2. [33]

   The Applicants’ submission was that the primary judge erred in according a literal meaning to s 97 of the Act. There may, of course, be a difference between the literal and legal meaning of a statutory provision: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28. At [78] of that seminal decision, the plurality said:

3. [34]

   In written submissions, the Applicants drew an analogy with the now repealed Road Transport (General) Act 2005 (NSW) (Road Transport Act) s 188(2)(d)(ii), which provided that:

4. [35]

   Section 188(2)(d) of the Road Transport Act was considered by this Court in Roads and Traffic Authority of NSW v Higginson [2011] NSWCA 151 (Higginson), a decision upon which the Applicants placed heavy reliance. Higginson was concerned with the operation of an order which had been made by a magistrate who disqualified Mr Higginson from holding a drivers’ licence for a 12 month period, pursuant to s 188(2)(d) of the Road Transport Act. The magistrate had also made a community service order which was the subject of appeal to the District Court. The District Court judge (Ellis DCJ) made the following orders:

5. [36]

   As Giles JA observed:

6. [37]

   The real issue in Higginson concerned the reference to the period 8 June 2010 to 7 June 2011 in Ellis DCJ’s orders, because this included a period during which the sentence was automatically stayed pending the appeal to the District Court, and was said to involve jurisdictional error because it meant that the court had in substance imposed a sentence less than the minimum period of 12 months required by s 188(2)(d) of the Road Transport Act. It was only, however, if this operative error was in an order made by the District Court that it would be amenable to judicial review for jurisdictional error. Basten JA proceeded on the basis that it was and this was the “better view” expressed by Giles JA in [19] of the passage set out at [36] above.

7. [38]

   The Applicants’ principal reliance in the present case was on the separate reasons for judgment of Young JA. Neither Giles nor Basten JJA expressed agreement or disagreement with those reasons. Those reasons must also be read in light of the fact, as pointed out by Young JA at [79], that some of the issues his Honour discusses were not the subject of full argument before the Court of Appeal.

8. [39]

   At [114] of Higginson, Young JA noted that:

9. [40]

   At [119]-[125], his Honour expanded on this conclusion as follows:

10. [41]

    Thus, with reference to Higginson, the Applicants submitted that the primary judge erred in effectively holding that the Local Court’s orders with respect to conviction had not been superseded by the District’s Court orders, as it was submitted that this was inconsistent with the well established position that the appellate court determination stands in place of that of the lower court (see, for example, Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8 (Wishart)).

11. [42]

    Wishart is authority for the unremarkable proposition that where an appeal from a conviction by a magistrate has been taken to another court (in that case, the then Court of Quarter Sessions) and that conviction has been confirmed, that decision stands as a bar to any attempt to appeal from the magistrate’s decision directly to the High Court. This was the context in which Williams J said (at 491) that:

12. [43]

    In his judgment, Starke J had said (at 478):

13. [44]

    I do not read Wishart as meaning, in a case where there has been a conviction in the Local Court but that the conviction has been confirmed in the District Court, that the conviction was not made in the Local Court. The position is a fortiori where all that has relevantly happened in the District Court is that an appeal from conviction has been dismissed, even though that dismissal functionally may be regarded as confirming the conviction.

14. [45]

    True it is that the Local Court decision may be superseded for some purposes on such a scenario as explained in Wishart. That does not mean, however, that for the purposes of s 97 of the Act currently under consideration, Ms Lazarus was convicted on 12 December 2017 in the District Court. To the extent that Young JA’s observations in Higginson may be thought to support the Applicants’ submission to the contrary, I would not follow them.

15. [46]

    It is not necessary to decide whether or not the District Court still has the power to “confirm” a conviction on appeal; that form of order is not contained in s 20(2) of the Crimes (Review and Appeal) Act (cf. s 133A of the former Justices Act), but it is implicit in s 68 of the same Act that such an order may be made by the District Court hearing an appeal from the Local Court in a criminal matter.

16. [47]

    The District Court in the present proceedings did not make any orders which could be taken to have “superseded” the Local Court’s orders with respect to conviction in the sense of altering the simple fact that it was in the Local Court in 2014 that Ms Lazarus was convicted. As Ms Lazarus’ appeal as to conviction was dismissed by the District Court, the Local Court’s orders as to conviction remained on foot. Nothing has occurred to alter the fact that it was the Local Court that convicted Ms Lazarus and found her guilty of the offences with which she was charged. The language of s 97 of the Act is clear and intractable.

17. [48]

    As noted at [14] above, Conlon DCJ summarily dismissed Ms Lazarus’ conviction appeal from the Local Court in light of her failure to appear. There was no order made which disturbed the convictions entered by the Local Court and the conviction remained that of the Local Court.

18. [49]

    As noted at [16] above, on the severity appeal, Hoy DCJ allowed the appeal and varied the sentence imposed by the Local Court. Whilst it is true that Hoy DCJ purported to “confirm” the convictions in his orders of 17 December 2017, why this was necessary, even assuming there was power to do so, is not apparent. As noted by Young JA in Higginson at [123], on a sentence appeal, the matter of conviction is not before the District Court.

19. [50]

    In any event, and as a matter of ordinary English, the “confirmation” of a conviction is not the same as the making of it. They are two distinct concepts and, while the original order recording the conviction may be superseded in some respects or for some purposes in accordance with Wishart, that does not mean that the identity of the Court which “convicts” a person alters.

20. [51]

    Wishart was applied by this Court in Blacker v Parnell [1978] 1 NSWLR 616 (Blacker), and that decision was also relied upon by the Applicants. In Blacker at 619, Moffitt P (with whom Reynolds and Samuels JJA agreed) cited Wishart as authority for the proposition that where “the conviction is affirmed or quashed, there is nothing to prohibit as the order of the Quarter Sessions replaces the magistrate’s conviction”. Neither this passage not any other aspect of the then President’s judgment supports the proposition stated in the headnote of the authorised report of Blacker, which is that “[w]hen the District Court judge dismissed the appeals from the magistrate, and confirmed the convictions and sentences, the convictions became those of the District Court judge and the sentences imposed were those imposed by him.”

21. [52]

    Other decisions which have applied Wishart to which attention was drawn in the Applicants’ submissions do not assist the Applicants’ case: see, for example, Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [12); Morgan v District Court of New South Wales (2017) 94 NSWLR 463; [2017] NSWCA 105 at [32]; Templeton (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 335 at [4]; Stephens v Director of Public Prosecutions (NSW) [2019] NSWSC 761 at [25]; and Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121. As I have indicated above, Wishart is concerned with the ongoing operative effect of orders of the Local Court where there has been an appeal from those orders, with ramifications for the availability of judicial review of the original decision.

22. [53]

    The primary judge was correct in holding that the relevant court that convicted Ms Lazarus of offences in the present proceedings was the Local Court, and it was only that Court which could make directions for compensation pursuant to s 97 of the Act. The District Court could not make such directions.

23. [54]

    Although the matter was argued with both skill and care by Mr Gow, no jurisdictional error has been established by the Applicants.

24. [55]

    The application for judicial review must be dismissed.

25. [56]

    MACFARLAN JA: I agree with Bell P.

26. [57]

    WHITE JA: This application for judicial review turns upon the construction of s 97 of the Victims Rights and Support Act 2013 (NSW) (“the Victims Rights Act”). That section is set out in the reasons for judgment of the President at [3].

27. [58]

    Section 98 of the Victims Rights Act provides:

28. [59]

    In ss 97 and 98 “court” is defined as follows:

29. [60]

    The applicants submitted that the order of Conlon DCJ of 20 June 2017 summarily dismissing Ms Lazarus’ appeal from conviction, and confirming that conviction, superseded the conviction made in the Local Court and became the operative order of conviction. As the President notes, the applicants rely upon Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8. The reasoning in Wishart v Fraser has been applied by this court in holding that the dismissal by the District Court of an appeal from conviction in the Local Court, whether given after a hearing on the merits or not, precludes any application for judicial review of the order of the Local Court (Jamal v Director of Public Prosecutions [2019] NSWCA 121 at [52] and cases cited; Blacker v Parnell [1978] 1 NSWLR 616 at 619).

30. [61]

    The applicants relied on the judgment of Young JA in Roads and Traffic Authority of NSW v Higginson [2011] NSWCA 151 at [114] ff. I agree with the President’s reasons at [38]-[45] in relation to the applicants’ reliance on Higginson. The applicants also cited Blacker v Parnell. Blacker v Parnell concerned an appeal to the District Court under the then s 122 of the Justices Act 1902 (NSW) from a conviction and sentence of a magistrate. The applicants were each convicted of a drug offence and sentenced to six months’ imprisonment. An application was made to the Supreme Court under s 112 of the Justices Act for a statutory prohibition. Appeals were also lodged against conviction and sentence with the consequence that execution of the convictions and sentences were stayed.

31. [62]

    The application for prohibition came before a judge of the Supreme Court at 11:30am on 17 March 1978. Fifteen minutes earlier a District Court judge made orders as follows:

32. [63]

    The matter came before the Court of Appeal by an application for leave to appeal from the decision of the Supreme Court judge dismissing the applications for prohibition. Moffitt P, with whom Reynolds and Samuels JJA agreed, said (at 619):

33. [64]

    Section 122 of the Justices Act provided for an appeal to the District Court against conviction or sentence by way of imprisonment, fine, penalty or any forfeiture from a Justice of the Peace. Section 125 relevantly provided:

34. [65]

    In 1977, the appeal from a conviction or sentence of a Justice of the Peace to the District Court was by way of an appeal de novo (Goldfinch v R (1987) 30 A Crim R 212 at 218-219 per McHugh JA). The amendments to the appeal provisions of the Justices Act in 1998 by the Justices Legislation Amendment (Appeals) Act 1998 (NSW) are traced by McColl JA in Engelbrecht v Director of Public Prosecutions [2016] NSWCA 290 at [66]-[81].

35. [66]

    Whatever the precise nature of the appeal by way of rehearing from conviction now provided for by s 18 of the Crimes (Appeal and Review) Act 2001 (NSW) (AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218), the change to the legislative provisions as to the nature of the appeal to the District Court from conviction is such that it cannot now be said that the order of the District Court dismissing the appeal from conviction, or confirming the conviction, is itself a conviction made by the District Court judge.

36. [67]

    There are considerations that prima facie militate against anything other than a literal construction of s 97. Because these considerations were not the subject of argument (there being no appearance for the respondent and the Attorney General having declined to intervene), the following observations are necessarily tentative. They turn on the definition of “court” in s 96.

37. [68]

    On the applicants’ construction of s 97, it is the court that makes the order that has the operative effect of the person being convicted of an offence that can give a direction for compensation for loss. Where there is an appeal from conviction, the order that has such operative effect will be the order of the appellate court that dismisses the appeal, or, in limited cases, enters a conviction.

38. [69]

    The focus of argument in the present application, perhaps naturally enough, was upon an appeal from the Local Court to the District Court. The submissions did not address alternative appeals, such as an appeal from the District Court or the Supreme Court to the Court of Criminal Appeal, or a further appeal (with special leave) to the High Court.

39. [70]

    The Court of Criminal Appeal is established by s 3(1) of the Criminal Appeal Act 1912 (NSW). The Supreme Court is the Court of Criminal Appeal for the purposes of the Criminal Appeal Act. The Court of Criminal Appeal has no separate civil jurisdiction.

40. [71]

    The fact that the Court of Criminal Appeal is a “court” that can give a “direction for compensation” pursuant to s 97, does not mean that the dismissal of an appeal against conviction from the District Court or the Supreme Court should mean that the Court of Criminal Appeal, and not the District Court or the Supreme Court, is the court that can give a direction for compensation. There are cases in which the only relevant conviction is that made by the Court of Criminal Appeal, rather than the District Court or the Supreme Court, such as where a conviction of a more serious offence is set aside and a conviction for a lesser offence is substituted (Criminal Appeal Act, s 7(2)).

41. [72]

    Prima facie, and uninstructed by submissions, there would be good reason to conclude that in such a circumstance the Court of Criminal Appeal, being an integral part of the Supreme Court, and being the only court that convicted a person of an offence, would have unlimited authority to give a direction for compensation under s 97, just as the civil jurisdiction of the Supreme Court to give judgment in proceedings for the recovery of a debt is unlimited.

42. [73]

    Otherwise, the inclusion of the Court of Criminal Appeal in the definition of “court” in s 96 would be meaningless because the Court of Criminal Appeal does not have civil jurisdiction separate from the Supreme Court.

43. [74]

    I accept that this prima facie construction may be contestable. If it were intended that in the more usual case where the Court of Criminal Appeal dismisses an appeal from conviction, the court that could order compensation under s 97 of the Victims Rights Act was not the District Court or the Supreme Court who convicted the offender, but the Court of Criminal Appeal who dismissed the appeal from conviction, then one would expect explicit consideration to have been given to the issue addressed at [71]-[73] above.

44. [75]

    Assuming the tentative construction I have suggested at [72] is correct, then, if the applicants’ construction of s 97 is correct, it would follow that an offender convicted of a property offence by the District Court that caused victims loss of more than $750,000 would have to give careful consideration to whether a consequence of an unsuccessful appeal would be exposure to a greater level of potential liability under s 97. On the other hand, if that construction is wrong, and because the Court of Criminal Appeal, if it is treated as a court distinct from the Supreme Court, has no civil jurisdiction, then, on the applicants’ construction of s 97, any such offender convicted by the District Court would have an incentive to appeal from conviction, whatever the merits of appeal, so as to avoid an order for compensation.

45. [76]

    Of more significance is an appeal against conviction to the High Court. The fact that the appeal to the High Court is an appeal stricto sensu, would not affect the fact that where an appeal from conviction is dismissed by the High Court, the operative decision is that of the High Court and not the lower court. But the Victims Rights Act does not and could not confer authority on the High Court to give a direction for compensation under s 97. If the applicants’ submission is correct, then an offender who pursued his or her appeal from conviction as far as the High Court, could not be subjected to a direction for compensation under s 97. Such a construction would not make sense.

46. [77]

    The same consideration would arise in the more limited class of case in which an appeal from conviction may lie from the Supreme Court to the Federal Court of Australia, such as for an offence under s 132AD of the Copyright Act 1968 (Cth) where the appeal from conviction would lie to the Federal Court pursuant to s 131B(2)(a) of the Copyright Act.

47. [78]

    For the reasons of the President, and these additional reasons, I agree with the orders proposed by the President.