Majak v Rose - [2016] NSWCA 278

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Majak v Rose [2016] NSWCA 278
Hearing dates: 26 September 2016
Decision date: 12 October 2016
Before: Meagher JA
Decision:
1. Notice of motion filed on 5 September 2016 dismissed.
2. Order the applicant pay the respondent’s costs of that motion.
3. The proceedings be listed for directions before the Registrar at 9.00am 19 October 2016.

Catchwords: PRACTICE AND PROCEDURE – where applicant seeks judicial review of costs orders and other decisions made in Local Court and District Court – where application for stay of enforcement of costs orders and of part heard application in Local Court for apprehended personal violence order – no arguable case for interim relief – application refused
Legislation Cited: Crimes Act 1900 (NSW), s 338(1), (2)
Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 9(2), 73, 84(2)
Category: Procedural and other rulings
Parties: Zofia Majak (Applicant)
Alan Wesley Rose (Third Respondent)
Representation: Counsel:
Z Majak (Applicant in person)
A R Byrnes, Solicitor (Third Respondent)

File Number(s): 2016/266890
Decision under appeal

Court or tribunal:

District Court of New South Wales;Local Court of New South Wales

Date of Decision:

7 June 2016;
10 December 2015;
22 June, 4 August 2016

Before:

Bozic DCJ; Magistrate Lee; Magistrate Williams

File Number(s):

2014/44950; 2016/34166

Judgment

The applicant (Ms Majak) seeks relief in this Court’s supervisory jurisdiction in respect of six decisions said to have been made in the District Court or the Local Court.
By her notice of motion filed 5 September 2016 Ms Majak seeks the following interlocutory orders, each of which is opposed:

1   Order to Stay a Writ of Levy of Property, Court Case No: 2016/00248593 for the amount of $7885.99.
2   Order to stay Garnishee Orders issued in relation to cost orders that are subject of this review.
3   Order to stay enforcement of cost orders granted by Local Court and District Court in relation to proceedings 2014/00044950-001.
4   Order to Stay APVO proceedings 2016/00034166 listed in the Local Court in Gosford for 6 October until the review under supervisory jurisdiction is completed.
5   In alternative, an order to determine the Notice of Motion seeking leave to commence private prosecution against Alan Rose in relation to perjury before determination of the APVO Application is made.

It is necessary to say something about the circumstances in which those six decisions were made and to describe them in more detail, for the purpose of addressing the interlocutory relief sought.
The applicant and respondent were formerly in a de facto relationship and jointly owned a development property in Bangalow St, Ettalong. That relationship broke down in 2013. In late January 2014 Ms Majak applied for an apprehended domestic violence order (ADVO) against Mr Rose. On 18 February 2014 on Mr Rose’s application an interim ADVO was made ex parte against Ms Majak. On the final hearing of that application on 12 June 2014 Ms Majak consented to an ADVO order for a period of six…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Majak v Rose

Details

AGLC: Majak v Rose [2016] NSWCA 278
Case: [2016] NSWCA 278
Decision Date: 12 October 2016

CaseChat Overview and Summary

The applicant, Majak, sought judicial review of costs orders and other decisions made in the Local Court and District Court, as well as an interim stay of enforcement of those costs orders and a part-heard application for an apprehended personal violence order in the Local Court. The respondent was Rose.

The primary legal issue before the court was whether the applicant had an arguable case for the interim relief sought, specifically a stay of enforcement of the costs orders and the apprehended personal violence order proceedings.

Meagher JA found that there was no arguable case for the interim relief sought by the applicant. Consequently, the notice of motion filed on 5 September 2016 was dismissed, and the applicant was ordered to pay the respondent’s costs of that motion. The proceedings were subsequently listed for directions before the Registrar.

Orders

Orders of the court

1. Notice of motion filed on 5 September 2016 dismissed.

2. Order the applicant pay the respondent’s costs of that motion.

3. The proceedings be listed for directions before the Registrar at 9.00am 19 October 2016.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Majak v Rose [2016] NSWCA 278
Hearing dates:	26 September 2016
Decision date:	12 October 2016
Before:	Meagher JA
Decision:	1. Notice of motion filed on 5 September 2016 dismissed. 2. Order the applicant pay the respondent’s costs of that motion. 3. The proceedings be listed for directions before the Registrar at 9.00am 19 October 2016.
Catchwords:	PRACTICE AND PROCEDURE – where applicant seeks judicial review of costs orders and other decisions made in Local Court and District Court – where application for stay of enforcement of costs orders and of part heard application in Local Court for apprehended personal violence order – no arguable case for interim relief – application refused
Legislation Cited:	Crimes Act 1900 (NSW), s 338(1), (2) Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 9(2), 73, 84(2)
Category:	Procedural and other rulings
Parties:	Zofia Majak (Applicant) Alan Wesley Rose (Third Respondent)
Representation:	Counsel: Z Majak (Applicant in person) A R Byrnes, Solicitor (Third Respondent)
File Number(s):	2016/266890
Decision under appeal	Court or tribunal: District Court of New South Wales;Local Court of New South Wales Date of Decision: 7 June 2016; 10 December 2015; 22 June, 4 August 2016 Before: Bozic DCJ; Magistrate Lee; Magistrate Williams File Number(s): 2014/44950; 2016/34166