Lazarus, Lazarus & Lazarus v Kane & Ors [2017] NSWSC 1150

Lazarus, Lazarus & Lazarus v Kane & Ors [2017] NSWSC 1150

The amended summons was dismissed because the relief sought under the Vexatious Proceedings Act 2008 (NSW) was unavailable: most challenged conduct was not "proceedings" within that Act, the Act did not provide the declaratory relief sought, and no grounds or evidence established a reasonable cause of action. Much of the summons also sought to relitigate issues already determined, including the validity and effect of the Validation Act and challenges to the commencement of criminal proceedings, making the claim an abuse of process. Prayer 8 was also an abuse of process because the relevant Validation Act issues had been determined by the Court of Appeal.

Jurisdiction
Australia
Judgment Date
30 August 2017
Procedural Posture
Notice of Motion Seeking Summary Dismissal or Strike Out of Amended Summons / Supreme Court of New South Wales Common Law Division Ruling on Second and Third Defendants' Motion
Outcome
Amended summons dismissed pursuant to UCPR r 13.4; costs ordered against the plaintiffs.
Legal Topics
['summary Dismissal' 'strike Out' 'vexatious Proceedings' 'abuse of Process' 'res Judicata' 'icac Investigation' 'validation Act']
['civil Procedure' 'administrative Law' 'criminal Procedure'] ['summary Dismissal' 'strike Out' 'vexatious Proceedings' 'abuse of Process' 'res Judicata' 'icac Investigation' 'validation Act']

Case Brief

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Procedural Posture

Notice of Motion Seeking Summary Dismissal or Strike Out of Amended Summons / Supreme Court of New South Wales Common Law Division Ruling on Second and Third Defendants' Motion

Legal Issues

  1. 1 ['Whether the amended summons disclosed a reasonable cause of action or was frivolous, vexatious or an abuse of process within UCPR r 13.4.' 'Whether the matters challenged by the plaintiffs were "proceedings" capable of relief under the Vexatious Proceedings Act 2008 (NSW).' 'Whether the plaintiffs were attempting to relitigate issues already determined by the Supreme Court or Court of Appeal concerning Operation Charity, Court Attendance Notices, and the Validation Act.' 'Whether prayer 8, seeking to quash or stay ICAC findings or decisions in Operation Charity, was an abuse of process.']

Ratio Decidendi

The amended summons was dismissed because the relief sought under the Vexatious Proceedings Act 2008 (NSW) was unavailable: most challenged conduct was not "proceedings" within that Act, the Act did not provide the declaratory relief sought, and no grounds or evidence established a reasonable cause of action. Much of the summons also sought to relitigate issues already determined, including the validity and effect of the Validation Act and challenges to the commencement of criminal proceedings, making the claim an abuse of process. Prayer 8 was also an abuse of process because the relevant Validation Act issues had been determined by the Court of Appeal.

Court Disposition

Amended summons dismissed pursuant to UCPR r 13.4; costs ordered against the plaintiffs.

Orders

  • ['Pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 the amended summons filed by the plaintiffs on 27 June 2017 is dismissed.' 'The plaintiffs are to pay the costs of the Motion.' "The plaintiffs are to pay the second and third defendants' costs of the proceedings."]