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) Solicitors: Leigh Johnson Lawyers (Applicant) Crown Solicitor's Office (Respondents) File Number(s): 2019/191770 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. BELL P: I have had the benefit of reading in draft the reasons for judgment of Basten JA with which I agree. I also agree with the orders his Honour proposes. 2. The non-compliance by Ms Lazarus with the direction to file s 78B Notices under the Judiciary Act 1903 (Cth), as referred to at [8] below, does not stand in the way of the orders. As French J (as he then was) said in Australian Competition and Consumer Commission v C G Berbatis Pty Ltd: [1] "[14] Section 78B does not impose on the court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be. If the asserted constitutional point is frivolous or vexatious or raised as an abuse of process, it will not attach to the matter in which it is raised the character of a matter arising under the Constitution or involving its interpretation" (footnotes omitted). See also Potier v State of New South Wales [2014] NSWCA 359 at [23]. 1. BASTEN JA: On 7 June 2019 Sandra Lazarus filed a summons seeking judicial review of a "decision" made by Judge Hoy in the District Court on 22 May 2019. The "decision" involved a direction to the Registrar to issue warrants of commitment with respect to the sentences imposed on Ms Lazarus for 16 offences under s 178BB of the Crimes Act 1900 (NSW) (obtaining financial advantage by a false or misleading statement) and 27 offences under s 300(1) of the Crimes Act (inducing a third person to act to his or her prejudice by making or using a false instrument). 2. On 16 May 2019 this Court had made declarations that the warrants of commitment issued out of the District Court on 12 December 2017 were valid and sufficient authority for the committal of Ms Lazarus and her conveyance to a correctional centre to be kept in custody for the terms of her sentences. [2] However, the execution of the sentences having been stayed by operation of s 69C(2) of the Supreme Court Act 1970 (NSW), the proceedings were remitted to the District Court for the amendment of the warrants of commitment and parole orders in accordance with the orders made in this Court. 3. On 22 May 2019 Judge Hoy gave a direction to the Registrar to reissue warrants in accordance with his orders of 12 December 2017, as amended in accordance with the orders of this Court of 16 May 2019. Those steps were taken. The summons now before this Court challenges the direction given by Judge Hoy. The summons filed on 7 June 2019 was amended by a further summons filed on 17 June 2019. The summons was filed on behalf of Ms Lazarus by Leigh Johnson Lawyers. 4. The amended summons did not indicate what had been amended. There was some reformulation of the orders sought, though it is not clear that the substantive effect differed from the earlier orders sought. There does not appear to have been significant change to the grounds. 5. On 18 June 2019 the Director of Public Prosecutions (NSW), who was the third respondent named in the summons and the appropriate active respondent, filed a notice of motion seeking dismissal of the summons pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR), together with an order for costs in his favour. 6. The amended summons came before the Registrar on 24 June 2019. Neither Ms Lazarus nor her lawyer appeared on that occasion. Presumably because the amended summons asserted a breach of Ch III of the Constitution, on 24 June 2019 the Registrar directed that she serve by 26 June notices under s 78B of the Judiciary Act 1903 (Cth), and by 28 June submissions in support of her summons. She was also to file and serve affidavits of service with respect to the s 78B notices by 28 June. As required by direction 6, the Director notified her solicitor of the orders made. The directions were not complied with, in time or at all. 7. Further directions hearings were held on 1 and 5 July 2019. Again, neither Ms Lazarus nor her lawyer appeared at either hearing, but her solicitor was notified of the directions, including the date for hearing the amended summons, namely 6 August 2019. Notwithstanding this, there was no appearance by or for Ms Lazarus on 6 August 2019. 8. The primary basis upon which the Director seeks to have the proceedings dismissed is that there is no reviewable decision. Although, as a matter of administrative arrangement, the orders of this Court appear to have been provided to Judge Hoy, his direction with respect to the warrants was that they be issued "with amendments and in accordance with orders of Supreme Court of NSW, Court of Appeal dated, signed and sealed 16 May 2019." (A report of a medical practitioner of 22 May 2019 was directed to be attached to the custodial warrant for the assistance of Justice Health and Corrective Services.) 9. The order of this Court required the amendment and issue of warrants of commitment and parole orders, a practice routinely undertaken in the Registry. What was done was done in compliance with the orders of this Court, as recognised by Judge Hoy in his note on the District Court file. 10. That is not to say that an administrative function undertaken by a judge of the Court may not be subject to judicial review pursuant to s 69 of the Supreme Court Act: steps taken under Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW) provide examples of reviewable administrative decisions. However, a distinction must be drawn between merely ministerial activities which involve the mechanical application of an instruction: where the underlying affectation of a right or interest lies elsewhere, such acts do not constitute reviewable decisions. That is because the ministerial act does not affect rights or interests: it is the source of the duty to act which has that effect. Put slightly differently, a mechanical action by a government officer does not engage any of the obligations underlying the grounds of judicial review. No doubt if the officer made a factual error the error would be subject to correction. 11. Grounds 1-4 in the amended summons asserted that the changes to the dates contained in the warrants were not authorised by s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW). That is no doubt so, but that provision was not relied upon to "validate", or provide a basis for, the alterations and changes to the warrants. 12. Grounds 1 and 3 stated that the changes to the dates involved conduct "contrary to the principles, provisions and operation of Chapter III of the [Commonwealth Constitution]." That must be because there was error in the orders made by this Court. If there were such an unidentified error, of a kind which would contravene Chapter III of the Constitution, the remedy would lie in the High Court and not by way of proceedings in this Court. In any event, no such error was even described, let alone identified with precision. None is apparent. Further, the Court was advised that Ms Lazarus has filed an application for special leave to appeal from its decision of 16 May 2019 (as well as its earlier decision in Lazarus v Independent Commission Against Corruption. [3] ) 13. Grounds 2 and 4 made similar allegations to those referred to in the previous paragraph, adding reference to certain articles of the International Covenant on Civil and Political Rights. The Covenant provides no additional basis for complaint in circumstances where it has not been implemented municipally and the laws of New South Wales or the Commonwealth do not provide for domestic relief for its violation. 14. Grounds 5-12 alleged error on the part of the "primary judges", which appears to be a reference to the members of this Court who made the orders entered on 16 May 2019. Each of grounds 5, 6 and 7 asserted a denial of a hearing. Grounds 8, 9, 11 and 12 asserted that the judgment of the Court breached principles of "res judicata" (also referred to as "res judicuta") and "functus officio". It was not possible to glean any particular basis for the challenges set out in these paragraphs. A mechanism for challenge to the orders made in this Court lies elsewhere. 15. Ground 10 is a lengthy paragraph purportedly quoting from "the Department of the Attorney-General's report of 2016". It ends with a repetition of the proposition that the orders of 22 May 2019 "are a breach and are contrary to natural justice, procedural fairness and are contrary to Chapter III of [the Constitution] and [the International Covenant]." Again there is no detail or substance or attempt to propose any coherent basis upon which the challenge is made. 16. Despite the obscurity of the grounds, two barely articulated complaints may be inferred. First, many of the grounds referred to changing or altering "expired" sentences. It may perhaps be inferred that one underlying complaint was that the exercise of judicial power by this Court did not extend to making orders which gave new life to a warrant which, on its face had expired. If that were the intended inference, it involved a challenge to what this Court said in its judgment of 29 May 2019 at [40]. No basis was provided for such a challenge; it is not available in this Court. 17. Secondly, a number of grounds referred to procedural unfairness. However, the obligation to accord procedural fairness attended the antecedent hearing before this Court, not the steps taken to implement the orders made by the Court. At the hearing before this Court Ms Lazarus was present and was represented by counsel. There was no breach of procedural fairness. Not only was the issue of the warrants not a function attracting a right to be heard, but by its nature it was not an occasion on which any submissions by Ms Lazarus could realistically have led to a different outcome. [4] If such a challenge were intended, it is hopeless. 18. The claim for orders quashing or setting aside the "decision" of the District Court was fundamentally misconceived. As explained in Ainsworth v Criminal Justice Commission, [5] "[t]he function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review." [6] The relevant legal rights of Ms Lazarus were determined by the orders of this Court; steps taken to give effect to those orders had themselves no effect on those legal rights. Like the mechanical step of entering the orders in the Court record, the issue of the warrants had no separate or discernible effect on Ms Lazarus' legal rights. If error occurred in the course of that process, it could be corrected by a motion in the original proceedings; however, no error occurred in the course of that process. 19. It remains to note the terms of order 11 sought in the amended summons, namely an order that, pursuant to s 69C of the Supreme Court Act, the Court stay "the sentences and orders of 22 May 2019, until the conclusion of these proceedings." 20. As the Director correctly noted, such an order is otiose: s 69C applies of its own force to stay the operation of a determination made by the District Court in appeal proceedings relating to a conviction or order made by the Local Court. The execution of a sentence imposed as a consequence of such a conviction is stayed: s 69C(2). The stay continues until the proceedings for judicial review are finally determined: s 69(4). That provides a sufficient reason to refuse to make an order in the terms sought in order 11 in the amended summons. 21. It follows that the Director's application for summary dismissal of the present proceedings should be upheld. Costs should follow the event. 22. The Director's submissions, however, raised a further issue. They submitted that the direction of Hoy DCJ to reissue the warrants did not constitute a "determination" made by the District Court in appeal proceedings relating to a conviction or order made, or sentence imposed by the Local Court. The direction given by Judge Hoy for the issue of the warrants did not constitute a "determination" within the meaning of s 69C(1), but merely "the exercise of a purely administrative function by the District Court on remittal from this Court". 23. That submission should not be accepted, for three reasons. First, there is no doubt that the issue of the warrants constituted the final process, like the entry of a judgment, in the determination of the appeal proceedings brought by Ms Lazarus against the convictions and sentences made and imposed by the Local Court. That jurisdiction did not change its nature because a further step was to be taken on remittal from this Court. It is common for there to be a remittal following a successful application for judicial review, because, in most circumstances, the court exercising the supervisory jurisdiction does not have the powers conferred on the court which made the decision under review. Thus, any further step taken in the lower court will constitute a continuation of the exercise of the jurisdiction which was the subject of judicial review. 24. Secondly, the submission relies for its force on acceptance of the earlier submissions that the proceedings for judicial review were, in the terms of r 13.4 of the UCPR, frivolous or vexatious, or involved an abuse of the process of the court. This Court has accepted that submission, but the operation of s 69C turns on the nature of the application for review under s 69, not the outcome of the application. In its terms, the amended summons was directed to a step taken in the determination of appeal proceedings in the District Court. That is sufficient to engage s 69C. 25. Thirdly, the submission, if accepted, would tend to frustrate the purpose of s 69C. That purpose is to ensure that a sentence does not continue to run during a period while it, or the conviction supporting it, is under review. The present challenge involves a step taken in giving effect to the sentence, namely the issue of the warrants of commitment. Its purpose would not be served by a construction which permitted the execution of those warrants whilst the review was on foot. 26. The Director's submissions referred to the observation of Simpson AJA in the earlier decision of this Court to the effect that "[f]rom the date of her initial conviction (November 2014) the respondent, by various legal manoeuvres, sought to impede the progress of the criminal proceedings…". [7] One consequence of the engagement of s 69C in the present circumstances is that Ms Lazarus' sentences have not been running while these proceedings were on foot. That is in conformity with the purpose of the provision noted above. 27. The consequence of the last conclusion is that the orders disposing of the present application, the making of which would finally determine the application, will terminate the current stay. Compliance with the warrants requires that Ms Lazarus be taken into custody forthwith. 28. The Court should make the following orders: 1. Dismiss the amended summons filed on 17 June 2019. 2. Order that the applicant pay the costs of the Director of Public Prosecutions. 1. MEAGHER JA: I agree with Basten JA. ********** Endnotes 1. (1999) 95 FCR 292; [1999] FCA 1151. 2. Lazarus v Director of Public Prosecutions (NSW) [2019] NSWCA 125. 3. [2019] NSWCA 100. 4. Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252; [2019] HCA 3 at [45] (Bell, Gageler and Keane JJ). 5. (1992) 175 CLR 564; [1992] HCA 10. 6. Ainsworth at 580 (Mason CJ, Dawson, Toohey and Gaudron JJ); see also Brennan J at 595; and see Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 159 (Brennan CJ, Gaudron and Gummow JJ); [1996] HCA 44. 7. Lazarus v Director of Public Prosecutions (NSW) [2019] NSWCA 125 at [53]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 August 2019