Lazarus v Kane [2019] NSWCA 194

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lazarus v Kane [2019] NSWCA 194 Hearing dates: 6 August 2019 Decision date: 07 August 2019 Before: Bell P at [1]; Basten JA at [3]; Meagher JA at [31] Decision: (1) Dismiss the amended summons filed on 17 June 2019.

(2) Order that the applicant pay the costs of the Director of Public Prosecutions. Catchwords: CRIMINAL PROCEDURE – judicial review – offender convicted and sentenced to imprisonment – challenge to issue of warrants of commitment – custodial sentence stayed pending judicial review – Court of Appeal order that warrants be amended – further judicial review of "decision" to amend warrants

CIVIL PROCEDURE – judicial review – orders in nature of certiorari – dismissal of proceedings – frivolous or vexatious – amendment of warrants not reviewable – rights affected by final order of court, not by steps taken to implement order

PRACTICE AND PROCEDURE – judicial review – stay of execution of custodial sentence – whether stay provided in Supreme Court Act 1970 (NSW), s 69C engaged Legislation Cited: Constitution, Ch III Crimes (Appeal and Review) Act 2001 (NSW), Pt 7 Crimes (Sentencing Procedure) Act 1999 (NSW) s 43 Crimes Act 1900 (NSW), ss 178BB, 300 Judiciary Act 1903 (Cth), s 78B Supreme Court Act 1970 (NSW), ss 69, 69C

Uniform Civil Procedure Rules 2005 (NSW), r 13.4 Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 Australian Competition and Consumer Commission v C G Berbatis Pty Ltd [1999] FCA 1151; 95 FCR 292; 167 ALR 303 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 Lazarus v Director of Public Prosecutions (NSW) [2019] NSWCA 125 Lazarus v Independent Commission Against Corruption [2019] NSWCA 100 Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252; [2019] HCA 3 Potier v State of New South Wales [2014] NSWCA 359 Category: Principal judgment Parties: Sandra Lazarus (Applicant) Michael Kane (First Respondent) Independent Commission Against Corruption (Second Respondent) Director of Public Prosecutions (Third Respondent) District Court of New South Wales (Fourth Respondent) Representation: Counsel: No appearance for applicant Ms J E Davidson/Mr D J Reynolds (Third Respondent) Submitting appearances (First, Second and Fourth Respondents)