Majak v Rose

[2022] NSWSC 1697

Supreme Court

New South Wales

Medium Neutral Citation:

Majak v Rose & Ors [2022] NSWSC 1697

Hearing dates:

26, 27, 28 April 2022
Written submissions (first and second defendants) 13 May 2022
Written submissions (third defendant) 27 May 2022 Written submissions (plaintiff) 28 June 2022

Date of orders:

16 December 2022

Decision date:

16 December 2022

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

(1) The proceedings are dismissed.
(2) The plaintiff is to pay the costs of each of the first, second and third defendants, as agreed or assessed.
(3) I direct the solicitor for the first defendant to provide a copy of this judgment to the plaintiff’s Trustee in Bankruptcy within 7 days.

Catchwords:

TORTS – Causes of action pleaded in conspiracy, fraud and collateral abuse of process – Where the plaintiff and the first defendant were previously in a relationship – Where the first defendant brought proceedings in the Local Court for an Apprehended Domestic Violence Order against the plaintiff – Where the protected persons were identified as the first defendant and the second defendant – Where the third defendant was a solicitor who acted for the first defendant in those proceedings – Where plaintiff failed to establish that the proceedings had been brought by the first defendant for an improper purpose or that they had been impermissibly used in some way – Proceedings dismissed

Legislation Cited:

Bankruptcy Act 1966 (Cth)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Cases Cited:

Blair v Curran (1939) 62 CLR 464; [1939] HCA 23

Burton v Office of the Director of Public Prosecutions (2019) 100 NSWLR 734; [2019] NSWCA 245

Majak v Rose [2019] Fam CA 1013

Maxwell-Smith v S and E Hall Pty Ltd and anor. (2014) 86 NSWLR 481; [2014] NSWCA 146

Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34

Category:

Principal judgment

Parties:

Zofia Bozena Majak – Plaintiff
Alan Wesley Rose – First Defendant
Shelia Jasmin Rebeiro – Second Defendant
Marc Riviere – Third Defendant

Representation:

Counsel:
Self-represented – Plaintiff
J Loofs SC and M Klooster – First and Second Defendants
I Griscti – Third Defendant

Solicitors:
Self-represented – Plaintiff
Byrnes Legal – First and Second Defendant
Mullane and Lindsay – Third Defendant

File Number(s):

2019/400687

Publication restriction:

Nil

Judgment

INTRODUCTON

1. Zofia Bozena Majak (the plaintiff) has brought proceedings against Alan Wesley Rose (the first defendant), Sheila Rebeiro (the second defendant) and Marc Riviere (the third defendant). The plaintiff has conducted the proceedings on her own behalf. The pleadings in the Statement of Claim are such that there is a degree of obscurity surrounding the precise nature of the cause(s) of action the plaintiff seeks to bring. I therefore propose to set out my factual findings, attempt to identify the cause(s) of action and their bases, and then consider whether any such cause(s) of action are made out on the evidence.

2. In setting out my factual findings I should note that many of the relevant facts are not in dispute, for the simple reason that they are matters of record. Where any material fact is disputed, I have indicated the nature of the dispute and my resolution of it.

3. With consent of all parties, a Court Book (CB) containing documentary evidentiary material was admitted into evidence. [1] A Supplementary Court Book (SCB) was also tendered. [2]

THE FACTS

1. Exhibit A.

2. Exhibit B.

The relationship between the plaintiff and the first defendant

4. The plaintiff and the first defendant were previously in a de facto relationship which broke down, and which was the subject of proceedings brought by the plaintiff in the Family Court of Australia. Those proceedings were determined by McClelland J who found (inter alia) that the relationship commenced in early 2009 and ended in October 2012, a period of approximately 3½ years. [3]

   3. See Majak v Rose [2019] Fam CA 1013 at [310] – [311]; CB 583 [7].

The relationship between the first defendant and the second defendant

5. The first defendant and the second defendant commenced a relationship in 2013. [4]

   4. CB 584 [9] – [10].

The third defendant

6. The third defendant is a solicitor who acted on the instructions of the first defendant in proceedings brought by the plaintiff against the first defendant, and in proceedings brought by the first defendant against the plaintiff, in the Local Court. Those proceedings are examined in further detail below.

The plaintiff’s application for an Apprehended Domestic Violence Order

7. In January 2014, the first defendant was served with an application for an Apprehended Domestic Violence Order (ADVO) which had been filed by the plaintiff [5] (the plaintiff’s application). The grounds for the plaintiff’s application included the following: [6]

The parties were in a defacto relationship for approx 7 years. As this relationship declined and the financial ties unravelling, [the first defendant] has become increasingly passive-aggressive. [The first defendant] found a new girlfriend and left the house but his father still resided in their second duplex, (built together). When [the plaintiff’s] computer broke down she used [the first defendant's]. His computer had thousands of pornography photos on it so [the plaintiff] decided to keep it for possible evidence in their relationship and financial litigation.

On 3/1/14 [the first defendant] attended [the plaintiff’s] house whilst she was sleeping and removed all the keys from the doors, leaving the door leading into the courtyard open. When [the plaintiff] discovered what had happened she went to the back unit asking him to return the keys but [the first defendant] was forcefully pushing [the plaintiff] out of the door. [The plaintiff] said she would like to talk to his father, who had just come back from the hospital. [The first defendant] started screaming “I don't want you to have anything to do with my father”. [The first defendant] kept pushing at her until she ended up being pushed over onto the tiles, hurting her hip.

5. CB 584 [12]; CB 619 – 621.

6. CB 620.

8. After making further allegations against the first defendant, the grounds for the plaintiff’s application concluded: [7]

[The plaintiff] fears she will be subjected to more obstructive, abusive and malicious behaviour from [the first defendant].

7. CB 620.

The first defendant’s first application for an ADVO

9. On 23 January 2014, the first defendant retained the third defendant to obtain advice in relation to the plaintiff’s application. [8] The events which caused the first defendant to engage the third defendant included the fact that, according to the first defendant, the plaintiff had:

   8. CB 584 [13].

1. harassed him;

2. harassed his father;

3. entered his premises without his knowledge and/or permission;

4. taken his mobile phone, from which she obtained the contact details of the second defendant, and which she then used to harass the second defendant;

5. sent him multiple emails and text messages;

6. assaulted him on 3 and 6 January 2013; and

7. stolen his computer. [9]

   9. CB 584 [14].

10. The first defendant also asserted that he had received correspondence from the plaintiff which was of a generally harassing nature and which was having an adverse impact on his relationship with the second defendant. [10]

    10. CB 584 [14].

11. When consulted, the third defendant advised the first defendant that he should file his own application for an ADVO against the plaintiff. The first defendant gave the third defendant instructions to bring such an application. [11] The third defendant then prepared an application in accordance with those instructions which was filed on 5 February 2014 [12] (the first application).

    11. CB 1113 [14] – [15].

    12. CB 1113 [14] – [15].

12. A copy of the first application was served on the solicitor who acted for the plaintiff at that time. [13] Receipt of it was acknowledged. [14]

    13. CB 1113 [16].

    14. CB 1114 [17].

The proceedings before the Local Court on 18 February 2014

13. The first application came before the Local Court on 18 February 2014. [15] On that occasion, the third defendant informed the presiding Magistrate that a copy of the application had been served on the solicitor who then acted for the plaintiff, and that he (the third defendant) had instructions to seek an interim order. [16]

    15. CB 1114 [18].

    16. CB 1114 [19].

14. An order naming the first defendant and the second defendant as protected persons (the interim order) was made by the Magistrate pursuant to s 19 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (the DV Act). The interim order imposed various restrictions on the plaintiff, [17] and prevented her from:

    17. CB 1114 [19]; CB 1147 – 1154.

1. assaulting, harassing, threatening or otherwise interfering with the first and second defendants;

2. engaging in any other conduct which intimidated the first and second defendants;

3. stalking the first and second defendants; and

4. going within 100 metres of premises at which the first and second defendants lived or worked. [18]

   18. CB 1151.

15. On 25 February 2014, and again on 1 April 2014, the first application, along with the plaintiff’s application, came before the Local Court for mention. On the latter occasion, a date of 12 June 2014 was set for the hearing of both applications. [19]

    19. CB 1114 [21] – [22].

16. It should be noted at this point that in the course of the hearing before me, the third defendant was cross-examined by the plaintiff at some considerable length regarding his conduct during the period in which he was acting for the first defendant. Much of that cross-examination was irrelevant although commendably, and in circumstances where the plaintiff was self-represented, counsel for the third defendant took a pragmatic approach and allowed the questioning to proceed, largely without interruption or objection. The plaintiff made various assertions of impropriety on the part of the third defendant when cross-examining him. Having carefully observed the third defendant when answering questions, and on the whole of the evidence, I am satisfied that at all times when acting for the first defendant, the third defendant did so entirely appropriately, completely honestly, and strictly in accordance with his instructions.

Events following the making of the interim order

17. Despite the terms of the interim order, the plaintiff continued to contact the first defendant throughout February and March 2014. [20] This was reported by the first defendant to police on 6 March 2014, [21] as a consequence of which the plaintiff was charged with breaching the interim order. On 2 October 2014, that charge was dismissed on the basis that the Magistrate could not be satisfied beyond reasonable doubt that the plaintiff had been served with the interim order. [22]

    20. CB 586 [26]; CB 622 – 685.

    21. CB 586 [28]; CB 1116 [38] – [40].

    22. CB 587 [34].

The proceedings before the Local Court on 12 June 2014

18. The plaintiff’s application, and the first application, both came before the Local Court for hearing on 12 June 2014. Due to the number of matters which were listed before the Court on that day, the third defendant formed the view that it was unlikely that either application would be heard and determined. [23] The first defendant instructed the third defendant that he would not consent to an order being made against him, and the third defendant advised him that he (the first defendant) may need to give “reciprocal undertakings”. [24]

    23. CB 1115 [26] – [27].

    24. CB 587 [35].

19. The third defendant said that after both applications had been mentioned and stood in the list, he met with the plaintiff and her partner in the presence of a Court Domestic Violence officer, Ms Tania McPhee. [25] I am satisfied that the third defendant informed the plaintiff on that occasion that:

    25. CB 1115 [28] – [29].

1. the first defendant would not agree to an order being made against him;

2. the first defendant was prepared to give undertakings in terms similar to those set out in the plaintiff’s application;

3. the matter would not be required to go to hearing if the plaintiff was prepared to agree to an order being made against her for a short period; and

4. alternatively, the matter could be adjourned to another date for hearing, and the interim order could be continued in the meantime.

20. The third defendant’s evidence was that following his discussions with the plaintiff, she indicated to him that she would “consent to a final order for a period of six months if (the first defendant) [gave] an undertaking in similar terms for the same period”. [26]

    26. CB 1116 [34].

21. The plaintiff’s evidence [27] of what occurred at the Local Court on 12 June 2014 is, but for one matter, generally consistent with the evidence of the third defendant which I have set out, and which I accept. I do not accept the plaintiff’s evidence that the third defendant “coerced” her into consenting to the making of a final order for 6 months, nor do I accept the plaintiff’s evidence that the third defendant “interfered” with her partner. In this regard it is noteworthy that part of the evidence adduced by the plaintiff is a file note which was prepared at the time by Ms McPhee, [28] a person who was obviously entirely independent of the dispute between the plaintiff and the first defendant. There is nothing in that file note which even remotely suggests that the third defendant behaved in a coercive or interfering manner, in circumstances where the plaintiff expressly agreed in cross-examination that there was nothing in the file note which was incorrect. [29] It is also noteworthy that it was never squarely put to the third defendant in cross-examination that he had coerced the plaintiff into taking a particular course, or that he had interfered with her partner. I am satisfied that the events of 12 June 2014 at the Local Court took place in the manner in which the first defendant and the third defendant have described them.

    27. CB 302 [91] – [96].

    28. CB 302 [93]; CB 355 – 356.

    29. T 71.47 – T72.34.

The final order made in the Local Court on 12 June 2014

22. On 12 June 2014, following the discussions set out above, an order was made in the Local Court pursuant to the first application, for a period of 6 months, naming the first and second defendants as protected persons (the final order). The final order imposed various restrictions on the plaintiff, in terms which were not dissimilar to those imposed by the interim order. [30] I am satisfied that the final order was explained to the plaintiff by the Magistrate, and that the plaintiff expressed her understanding of its terms. [31]

Other proceedings brought by the plaintiff against the first defendant

30. See [14] above.

31. CB 587 [35]; CB 709; CB 1115 [29] – CB 1116 [37].

23. The affidavit of the third defendant sets out the nature and extent of other proceedings brought by the plaintiff against the first defendant [32] (aside from proceedings in the Family Court of Australia which I have addressed separately below). They include constitutional challenges, and applications for prerogative writs. They were instituted in a variety of jurisdictions, both in New South Wales and elsewhere. They were generally unsuccessful. Many resulted in costs orders being made against the plaintiff, often in substantial sums. Those proceedings reflect an incessant litigious pursuit of the first defendant by the plaintiff which, as the outcomes of the various proceedings demonstrate, has proved to be largely without merit. Consistent with that, I found the plaintiff to be a largely unsatisfactory witness. Whilst I accept that she was at some disadvantage as a self-represented litigant, her answers in the course of cross-examination, particularly cross-examination by counsel for the first and second defendants, were often non-responsive to the question asked. Other assertions she made were grossly overstated. [33] Overall, the plaintiff conveyed the distinct impression that she was a person who had considerable animosity towards the first defendant (and, to some extent, the second defendant) and who was prepared to take every opportunity to make statements with the intention of discrediting both of them, and with the intention of attempting to further her own position in the present proceedings, regardless of whether such statements were right or wrong.

    32. CB 1117 – 1119 [41]; see also AB 745-764.

    33. See for example T57.11 – T57.36.

The first defendant’s application for an extension of the final order

24. In November 2014, the first defendant brought an application in the Local Court to extend the final order. That application was ultimately granted on 25 June 2015, with the consequence that the order continued for a period of 6 months from that date. [34]

    34. CB 1117 [41](e).

The proceedings commenced by the plaintiff in the Family Court of Australia

25. In January 2015, the plaintiff commenced proceedings against the first defendant in the Family Court of Australia. [35] The hearing of those proceedings extended over several days in 2018 and 2019, and culminated in the judgment of McClelland J being delivered on 24 December 2019. [36]

    35. CB 589 [42](a); CB 765 – 893.

    36. CB 588 – 589 [42](a).

26. An appeal brought by the plaintiff to the Appeal Division of the Family Court of Australia was dismissed. [37]

    37. CB 894 – 970.

The second application for an ADVO

27. On 1 February 2016, the first defendant filed an application against the plaintiff in the Local Court for a further ADVO naming himself and the second defendant as the persons who were in need of protection (the second application). The second application was heard over a period of 3 days before Magistrate Williams. On 24 October 2016, his Honour delivered judgment and made an order against the plaintiff for a period of 3 years (the second order). [38]

    38. CB 730 – 731.

28. His Honour commenced his judgment by noting the previous proceedings in the Local Court[39] before setting out some of the background to the second application: [40]

    39. CB 711[1] – [3].

    40. CB 711 – 713.

[4]   On 1 February 2016, [the first defendant] filed a fresh application for an AVO following an allegation that on 30 December 2015, within only days after the previous AVO expired, [the plaintiff] entered [the premises occupied by the first defendant’s father] and changed the locks preventing [the first defendant] from entering. [The first defendant] also alleged that certain property of his or his fathers was missing from the property. He made a complaint to the police regarding the missing property.

[5]   The proceedings first came before the Court on 16 February 2016 and as [the plaintiff] had not been served they were stood over to 15 March 2016 to allow for service. An interim order was made by the Court. [The plaintiff] was served on 20 February 2016 and within a short time she wrote to the Registrar of the Court alleging that the Court system was open to corruption and that [the first defendant] was a vexatious litigant. [The plaintiff] requested that the matter be reviewed in chambers and “voided as soon as possible”. The Registry re-listed the matter on 26 February 2016 when [the plaintiff] appeared but [the first defendant] was not present due to illness.

[6]   On 26 February 2016 [the plaintiff] filed a Notice of Motion. It is a little unclear what orders were actually being sought in the Motion but broadly it appears she was seeking following:

(a)   a stay of proceedings as the as [the first defendant] was not in fear for his personal safety;

(b)    an order that she had been denied natural justice due to false statements by [the first defendant] in previous proceedings;

(c)   an order that the application was a manipulation of the legal system again due to the false statements made by [the first defendant];

(d)   an order that the proceedings were an abuse of process. Again this was based on the events and evidence relating to other proceedings;

(e)   an order that [the first defendant] is a vexatious litigant;

(f)   an order that [the first defendant] was perverting the course of justice. Again this was based on matters that have previously been dealt with in previous proceedings;

(g) an order that the application was without merit and showed a pattern of false application. As part of this heading she asked the Court to recommend to the DPP to commence an investigation in relation to [the first defendant] with a view to a prosecution being commenced against him pursuant to s 49A of the Crimes (Domestic and Personal Violence) Act.

[7]   I formed the view that most of the issues raised in this motion were in effect matters which would be raised in the proceedings themselves and findings on the orders sought could be made at the conclusion of the proceedings. As to the request to have [the first defendant] declared a vexatious litigant, I simply point out that such an order is not within the powers of this Court.

29. Having summarised the evidence, his Honour formed a view of the plaintiff which was not dissimilar to my own. In particular, his Honour said the following:[41]

Even allowing for her being unrepresented, I found that the evidence given by [the plaintiff] to be generally unreliable and self-serving. Her evidence was clouded by her continued insistence in trying to introduce material that had been dealt with in other proceedings, clearly not to her satisfaction. She displayed a deep-seated animosity for [the first defendant], which not only affected her ability to give clear unbiased evidence about this matter but also resulted in her deflecting her animosity from [the first defendant] himself to [the third defendant] and making quite unfounded allegations against him. This behaviour led me to find that at times she was simply obscuring the truth.

41. CB 719 [41].

30. In making the second order, his Honour made a series of factual findings, including that:

1. the plaintiff’s conduct was clearly designed to have an adverse impact on the first defendant, be it in the form of inconvenience, discomfort, annoyance or aggravation; [42]

2. the plaintiff's conduct amounted to intimidation for the purposes of s 19(3) of the DV Act, [43] as well as to harassment which fell within the definition of intimidation; [44] and

3. both the first and second defendants were, in fact, intimidated by the plaintiff. [45]

   42. CB 721 – 722 [48].

   43. CB 722 [49].

   44. CB 722 [50].

   45. CB 725 [65].

31. His Honour’s ultimate finding was expressed in the following terms: [46]

In all the circumstances I find that the cumulative effect of each of these incidents is that both [the first defendant] and [the second defendant] have reasonable grounds to fear and in fact fear intimidation by [the plaintiff]. I also find that the conduct by [the plaintiff] is sufficient to warrant the making of an order.

46. CB 725 – 726 [66].

32. The terms of the second order made by his Honour (for a period of 3 years) were as follows: [47]

(1)(a)   [The plaintiff] must not assault, molest, harass, threaten or otherwise interfere with [the first defendant] or a person with whom [the first defendant] has a domestic relationship.

(b)   [The plaintiff] must not engage in any other conduct that intimidates [the first defendant] or a person with whom [the first defendant] has a domestic relationship.

(c)   [The plaintiff] must not stalk [the first defendant] or a person with whom [the first defendant] has a domestic relationship.

(2)   [The plaintiff] must not approach or contact [the first defendant] or [the second defendant] by any means whatsoever except through [the plaintiff's] legal representative.

(3)    Nothing contained in the above orders shall prevent [the plaintiff] from contacting the legal representative of either [the first defendant] or [the second defendant]. [48]

47. CB 730 – 731.

48. CB 726 [67].

33. An appeal against his Honour’s determination was dismissed by Judge Buscombe in the District Court on 5 July 2017. [49]

    49. CB 732 – 744.

The plaintiff’s case before this Court

34. In addressing the plaintiff's case against the first, second and third defendants before this Court, it is appropriate to go firstly to the Statement of Claim.

35. To begin with, the following is pleaded concerning the first application:[50]

[29] The procurement of the AVO was an abuse of process in that:

On the facts disclosed on the application, there was no reasonable basis for seeking the orders in aid of protection of [the first defendant] and [the second defendant], and [the third defendant] well knew that there was no entitlement to seek any of the relief that was claimed.

[The first application] had been filed for a wholly collateral purpose, namely to frustrate, to intimidate and to annoy the Plaintiff in the circumstances in which she was seeking to resolve her property issues with [the first defendant], following the breakdown of her relationship with him.

50. Statement of claim at [29].

36. The Statement of Claim goes on to plead:[51]

    51. Statement of Claim at [33].

[33] [The first defendant] held no legitimate fears that the Plaintiff would harass, intimidate or threaten him and nor…… was there any reasonable basis for [the second defendant] to have held such fears.

…..

[42] [The first defendant] and [the third defendant] used the AVO to pressure the Plaintiff to give up her claim in relation to the property settlement, to prevent adjustment to be made according to contributions made by the Plaintiff.

……

[56] [The first defendant] was successful in the AVO proceedings, because [the third defendant] conspired together with [the first defendant] making the false claims submitted by or on behalf of [the first defendant] and [the second defendant] impenetrable to the adversarial justice system.

[57] [The third defendant] relied on his professional privileges, causing false allegations to be made against the Plaintiff.

……

[83] By their conduct, the first through to the third defendants, together and for [the first defendant's] benefit, carried out such acts as were necessary to achieve a common purpose of subjecting the Plaintiff to court process, that they never had any (proper) entitlement to subject her to, and to deprive her of her rights to adjustment of assets.

[84] [The first defendant] used the AVO to advance his position, by making of allegations concerning the AVO (that was baseless), in the Family Law proceedings.

……

[87] The predominant purpose for which the AVO was taken out against the Plaintiff and the way in which each of the defendants acted and conducted themselves in respect of the AVO was (individually or collectively) is intended for the purposes of harming and causing injury to the Plaintiff, and the Plaintiff suffered loss and damage.

[88] For the “reasons disclosed” in paragraphs 18 to 87 of this Statement of Claim, the AVO and its filing before the Local Court at Gosford was a (collateral) abuse of process, filed on behalf of [the first defendant] and [the second defendant] for the improper and impermissible purpose(s), as following:

subjecting the Plaintiff to the conditions of the AVO, although it was completely unnecessary that she be made subject of it;

subjecting the Plaintiff to Court process that in all the circumstances was unwarranted and unnecessary;

employing it as an instrument of oppression against the Plaintiff and for the purposes of:

ensuring that the Plaintiff remained subject to it, when same was not required and was not necessary;

ensuring that the Plaintiff remained subject of Court process in which it was otherwise intended by the Plaintiff to have the AVO annulled or to have the orders made concerning it vacated;

assisting [the first defendant] to obtain and to maintain Court orders against the Plaintiff, to which [the first defendant] was not otherwise entitled;

obtaining an advantage in the proceedings before the Family Court of Australia, whereby:

the fact of the AVO proceedings was referred to repeatedly by the counsel (under [the first defendant's]) instructions during the Family Court proceedings to divert attention away from the real issues in those proceedings;

the Plaintiff's relationship and the nature of it with [the first defendant's] late father was called into question, because the Plaintiff was not allowed to attend the funeral under a threat of criminal prosecution;

alleged restriction to enter Unit B was used to mislead the Family Court into believing that [the first defendant] lived with his father in Unit B, to deny the Plaintiff's rights to the rental income and an equal share in the proprietary enrichment created by [the first defendant] in effect of investing that income in the property development in Victoria;

ensuring that any division of property that was required to be determined between Plaintiff and [the first defendant] for the purposes of the Family Law Act, was not dealt with appropriately for the purposes of S 79 of the Act.

thereby acted for the purpose of greatly harming and of injuring the Plaintiff.

37. Bearing in mind these pleadings, the plaintiff was cross-examined by senior counsel for the first and second defendants in respect of the cause(s) of action she brings: [52]

    52. T48.26 – T50.44.

Q. Ms Majak, I'd like to ask you some questions concerning the essence of the complaint that you bring today. Am I right in understanding your case is this. You say firstly that my client, Mr Rose, had no legitimate purpose in obtaining the AVO by extension on 25 June 2015, nor did he have any legitimate purpose in obtaining the AVO that he did on 24 October 2016? Do you say that?

A. That's right. Yes.

Q. There's no other proceeding that I can ascertain from your statement of claim that you are referring to when it comes to the AVO side of the proceedings, do you accept that?

A. (No verbal reply)

Q. In respect of which you make complaint?

A. I - no, that's correct.

Q. The second thing that you say, as I understand your case, is that Mr Rose impermissibly made use of those two AVO proceedings in two ways generally. First, the impermissible use that he made of it was to cause you harm, is that right?

A. Yes.

Q. And the second submission or the second argument that you make in your statement of claim is that he impermissibly used the AVO proceedings in the Family Court proceedings themselves, is that right?

A. Yes.

Q. And from what we understand of what you've said this morning, in relation to that last allegation - namely he impermissibly made use of the AVO proceedings in the Family Court proceedings - that relates to two interlocutory applications in which firstly Mr Fowler appeared and secondly Mr Byrnes appeared, and that application in respect of Mr Fowler occurred on 9 October 2017 - I withdraw that, in December of 2015, and secondly the application that Mr Byrne appeared on occurred in June 2016? Do you agree with that?

A. Yes.

Q. And do I take from that answer that you do not contend that Mr Rose impermissibly made use of the AVO proceedings in the hearing before McClelland J started on 1 August 2018?

A. The email that I forwarded shows that he misrepresented the AVO proceedings and he relied on the fact that there were ADVO orders granted for his protection, and I say he impermissibly used that information, which was misleading.

Q. My question to you though - I understand the allegation you make - my question to you though is do you say he did that in the application that Mr Fowler appeared in and the application that Mr Byrnes appeared in, but not the final hearing before McClelland J? Is that your case?

A. No it is not. The affidavit from 20 - that was forward 6 July 2015, that was submitted in the final hearing before Justice McClelland, that took place over three sessions, starting from August 2018 and finishing in January 2019.

Q. Can I suggest to you that the affidavit relied upon in the final hearing before McClelland J that was sworn by Mr Rose was the affidavit of 22 July 2018 which we have forwarded to you?

A. I think there were dates that, there was the first affidavit sworn on 6 July and that's the one that I forwarded, and we agreed that there was also this affidavit forwarded to me by you or Mr Byrnes. I did not read the second affidavit. I don't recall there were references to AVO, but I was particularly referring to the affidavit from 6 July 2015.

Q. I want to suggest to you that the affidavit of 6 July 2015 was not tendered in the final hearing before McClelland J commencing on 1 August 2018?

A. I would need to go, refer, I am aware that all affidavits that were submitted by Mr Rose were tendered in that proceeding. I would need to go to the transcript to confirm it.

Q. Nevertheless, are you saying it is the case whenever the affidavit of 6 July 2015 was tendered you say that that evidenced a misuse of the AVO proceedings? Is that your case?

A. Yes.

Q. Do you say that there is any other affidavit evidence of Mr Rose that did that? Or do you say it's confined to that affidavit?

A. There is also an affidavit that was filed by Mr Byrnes. This is the affidavit that I was referring to not being sure whether at that hearing which held, was initiated on 25 January 2016 and it was 3 June 2016, and I just forwarded this affidavit to all the parties that I sent the previous affidavit to. In paragraph 3 there's a reference made--

Q. Can I stop you just now. Do you say you have, right as you were speaking, forwarded that affidavit? Is that what you're saying?

A. Sorry, could you please repeat?

Q. You have referred to a further affidavit of Mr Rose which you say you have forwarded. Do you--

A. Yes.

Q. Sorry, of Mr Byrnes, that you have forwarded--

A. Yes.

Q. --but you say you have just sent that to his Honour and all the parties--

A. Yes.

Q. --is that what you're saying?

A. Yes. This is what I was referring in my statement--

……

Q. Are you referring to an affidavit of Russell Byrnes sworn on 10 May 2017; is that what you have forwarded?

A. No, it was 22 January 2016.

Q. And it’s an affidavit of Mr Byrnes of that date, do you say?

A. Yes.

Q. So the two affidavits that you rely upon to demonstrate Mr Rose’s misuse of the AVO proceedings are firstly his affidavit of 6 July 2015--

A. Yes.

Q. --and secondly the affidavit of Mr Byrnes the date of which just escapes me but that you have just forwarded to his Honour; is that right?

A. Yes, it’s sworn 22 January 2016. So I forward the first email and there’s a few documents, three of them.

38. Later in the cross-examination, the plaintiff was asked: [53]

Q. Can I summarise your argument as this? You say that the AVO proceedings misled the Family Court because of evidence that was run or relied upon by Mr Rose in the AVO proceedings, is that right?

A. That was part of the, part of the issues. That was not exclusively AVO proceedings. It was the maintaining that our relationship ended and having the opportunity of manufacturing the evidence that he was living with his father in unit B provided basis for the Family Court to accept the assertions that our relationship ended. Therefore we were living separately. Therefore there was no need to adjust any assets. Therefore the property that, construction of the property in Victoria which commenced in 2013 had nothing to do to our assets pool.

53. T59.44 – T60.4.

39. The plaintiff was then asked: [54]

    54. T61.40 – T63.43.

Q. Now lastly, if I could take you to paragraph 88(d) of the consolidated amended statement of claim? We dealt with (i) this morning. The second allegation you make there is that the plaintiff's relationship and the nature of it with Rose's late father was called into question because the plaintiff was not allowed to attend the funeral under a threat of criminal prosecution. Do you see that allegation?

A. Yes.

Q. Now when do you say your relationship with Rose's father was called into question in the Family Court proceedings?

A. I was examined during the hearing on the first day I think in, it was 1 August 2018, and--

Q. So pausing there. Is it the case that 88(d)(ii) should be confined to the final hearing, is that right?

A. Yes.

Q. Not any other earlier hearing?

A. I don't recall. It might have been mentioned in the affidavit. I think it was in one of the affidavits of Mr Rose referenced to the funeral because that would be the bases where I was questioned that I did not attend the funeral of Mr Rose.

Q. But you say the questioning of that issue occurred in the final hearing, is that right?

A. Yes, yes.

Q. And you say, as I understand it, that was the hearing at which Mr Coleman appeared and he cross-examined you. Is that right?

A. Yes.

Q. And do you say that it was the putting of that contention, namely that your relationship with Mr Rose's late father was called into question, that was an unfair use of the AVO proceedings, is that right?

A. That was the, the consequence of firstly restraining me from attending the, the funeral, and then putting me in a position that I didn't care about Mr Rose Senior because I did not attend to his funeral.

Q. And can I suggest to you that nothing, even if it was possible for you to make out the contentions in 88(d)(ii), that had no role to play whatsoever in the judgment of McClelland J concerning your property application?

A. Yes it has.

Q. Are you able to direct the Court to the part of the judgment that demonstrates that?

A. It will take a bit of search because it's a very long judgment. But there is a reference made to the fact that I did not attend - his Honour McClelland's noted that I did not attend the funeral of Mister--

Q. And you say, your contention is that that was because of the AVO proceedings, is that right?

A. I was specifically requested that if I attend, and I included in my exhibit an email with the exact wording where I was threatened, that there will be police called if I attended the funeral.

……

Q. If I could direct your attention to 88(d)(iii)?

A. Yes.

Q. You want to suggest that the Family Court again was misled in some fashion because of the AVO proceedings? Can you indicate how you say that occurred?

A. When the first restraining order was obtained ex-parte then I was restrained from unit, entering in B. And the restriction was based on the premise that Mr Rose lived in unit B and I had no property and I had no right to enter, which - unit B, which in short that we already had our assets separated, and we agreed on this kind of subdivision.

That I lived in front unit, he lived in the back unit. Where in fact that was the outcome of the AVO orders which were obtained ex-part, and I was just restrained from entering unit B. Until that time I was freely moving between the units. I had full access to the unit and the unit was occupied by Mr Byrnes - sorry, I apologise, by Mr Rose Senior.

Q. But this was again after your relationship had terminated, do you agree?

A. The termination really didn't occur on terms that you would perceive it was terminated. I was made to believe that we are in a relationship until I was found, I was told by Mr Rose's father that he had found himself another lady.

Q. Even on your case the relationship ended in October 2013. The earliest AVO is in 2014. I'm suggesting to you that your allegation in 88(d)(iii) can't possibly be about the AVO proceedings?

A. Yes it is, because only from the moment when the restraining orders were granted restraining me from unit B the thesis was created that I did not have any business or in any right to enter unit B. Therefore that created a situation that actually led into a judgment that the property was subdivided according to how the title was registered, not according to equity and how much I have invested in the property while it was one property under one roof under one title.

40. Finally, the plaintiff was asked: [55]

    55. T64.31 – T65.38.

Q. Lastly, can I direct your attention to 88(d)(iv)?

A. Yes.

Q. You say that, in effect, the unfair use by Rose of the AVO proceedings in the Family Court proceedings was ensuring that any division of property that was required to be determined between the plaintiff and Rose for the purposes of the Family Law Act was not dealt with appropriately for the purposes of section 79 of the Act. Is that a complaint that really encompasses the top three complaints or is it something else?

A. The, the, there was the issue that I tried to explain that my barrister, who usually works in the Supreme Court, not in the Family Court, relied on provision of receipts and he did not decide to make arguments about behaviour and he just relied on the facts that I have had receipts to pay for the construction with clear funds.

Q. Thank you. Can we--

A. Mr Rose - yes, sorry.

Q. --take it then that your complaint in 88(d)(iv) is really about how your barrister conducted the family law case; is that right?

A. The, the advantage was not just in, in effect of the spoken word but the situation that actually was created when--

……

Q. From what you’ve said to us just now, your complaint was that your barrister didn’t say certain things that you wanted him to say. I’m asking you is that what you really mean in the allegation in 88(d)(iv)?

A. So the first question that I heard was whether those paragraphs about (i), (ii), (iii) encompass everything that I mention in paragraph (iv)?

Q. Yes, let’s go to that question. Do you agree that paragraph (iv) really encompasses everything in (i), (ii) and (iii) of 88(d)?

A. It encompasses but also there’s expansion of this complaint.

Q. Okay, if I can stop you there, is the expansion the fact that you were unhappy with what your barrister did at the Family Court proceedings?

A. No, it wasn’t about being unhappy about my barrister. The circumstances that were created in the fact of this described me as a irrational person and not wanting to participate in completion of the, of the project, which was part of the reason what, for seeking interim orders against me. The, the, the barrister was not involved in the early proceedings but these early proceedings which were initially relied on to convince the Court--

Q. Can I stop you there? By the earlier proceedings do you mean the ones in which Mr Fowler and Mr Byrnes appeared, those two?

A. Yes. Yes.

Q. I follow, and your argument is that, in some way that I still don’t fully understand, the AVO proceedings were detrimental to those earlier proceedings; is that your argument?

A. Yes.

SUBMISSIONS OF THE PARTIES

Submissions of the plaintiff

41. The plaintiff's written submissions include what are, in my view, a number of extraneous propositions which extend well beyond any relief which has been sought. For example, under the heading “Part 1 – Preliminary” the submissions include the following:

The Plaintiff submits that [the third defendant] knowingly submitted a false application in the Local Court in Gosford, and on 18 February 2014 [sic], and procured ex parte interim AVO orders for the protection of [the first defendant] and [the second defendant], by making false criminal allegations against the Plaintiff.

Every other order that was made in the AVO proceedings against Plaintiff [sic] was based on the procurement of the interim ex parte AVO.

Justice Mark Leeming, addressed the question; when may a litigant apply to set aside a judgment on the basis that it has been procured by fraud, in his paper “Has the golden age of fraud passed?". His Honour referred to the judgment of the UK Supreme Court, Takhar v Gracefield Developments Pty Ltd [2019] UKSC 13 (“Takhar”).

The plaintiff relies on the authority of the case referred to by his Honour Leeming, to gain support for her claim, that the judgments that allowed granting AVO against her, in effect of false criminal allegations, amounts to fraud upon the court. Therefore, such judgments should be set aside.

42. As to these submissions, it should simply be noted that there was no clear pleading of fraud in the statement of claim. Fraud formed no part of the plaintiff’s articulation of her case when cross-examined. Moreover, an order setting aside the judgments of the Local Court does not form part of the relief sought in the Statement of Claim.

43. The submissions of the plaintiff then advanced a series of propositions which included the following:

1. at the time of bringing the first application, the third defendant knew that [the first defendant’s] allegation that the plaintiff had assaulted [the first defendant] was false; [56]

   56. At [29].

2. the third defendant misrepresented the evidence to the Magistrate in the Local Court; [57]

   57. At [48].

3. the first application was based on false criminal allegations which the third defendant knew to be false; [58]

   58. At [82].

4. the third defendant knew that the second application was made without a proper factual and legal basis; [59]

   59. At [54].

5. there was a conspiracy between the first, second and third defendants to institute proceedings seeking an ADVO as a tactic to intimidate the plaintiff into withdrawing her application for an ADVO; [60]

   60. At [114].

6. the third defendant became “complicit in fabricating false allegation in conspiracy with [the first defendant] and subjecting the plaintiff to coercive control”; [61]

7. the third defendant was complicit in making false statements in order to obtain an interim AVO and was thus liable for the harm and loss caused to the plaintiff; [62]

8. the first and third defendants were parties to a conspiracy to obtain a judgment by fraud by “withholding the issues which did not support the claim for granting of interim ex parte AVO”; [63]

9. there was a conspiracy between the first, second and third defendants to “take out the AVO against the plaintiff as a strategy to defend [the first defendant] against the allegation made against him by the plaintiff”; [64] and

10. the first, second and third defendants committed the tort of “collateral abuse of process” and conspiracy to injure by virtue of the improper use of domestic violence process, instituted for a purpose or to affect an object beyond that which the legal process offered by the Crimes (Domestic and Personal Violence) Act 2007. [65]

    61. At [134].

    62. At [135].

    63. At [142].

    64. At [156].

    65. At [174].

44. It is noted that specific allegations of conspiracy formed no part of the plaintiff’s articulation of her case when she was cross-examined.

Submissions of the first and second defendants

45. Senior counsel for the first and second defendants submitted that on the evidence, the only clearly articulated cause of action brought by the plaintiff was for the tort of collateral abuse of process. It was submitted that in order to make out such a cause of action, it was incumbent upon the plaintiff to establish that:

1. the proceedings complained of (in this case, the various proceedings brought by the second defendant against the plaintiff in the Local Court) were undertaken for a predominantly improper purpose; and

2. they were impermissibly utilised in some relevant fashion.

46. It was submitted that the evidence failed to establish either of those requirements.

47. Senior counsel submitted that the judicial determinations which had been made in respect of the first and second applications, which resulted in the making of the interim order, the final order and the second order, were, of themselves, evidence of the immediate and obvious (and thus predominant) purpose for which the first defendant had brought the various proceedings. It was submitted that in these circumstances, the plaintiff had failed to establish that the first and/or second defendants had brought and/or undertaken proceedings for a predominantly improper purpose. This, it was submitted, was fatal to the plaintiff’s cause of action.

48. It was further submitted that the plaintiff had failed to establish that the proceedings brought against her by the first defendant had been impermissibly utilised in any relevant fashion, be it in the Family Court proceedings or otherwise.

49. Finally, it was submitted that even if the plaintiff could somehow establish liability, there was an insurmountable difficulty in awarding any damages in her favour because, on the evidence, no such damages had been properly quantified.

Submissions of the third defendant

50. Counsel for the third defendant submitted that any cause of action against the third defendant which was based on a collateral abuse of process could not succeed for the simple reason that the third defendant was not a party to any of the proceedings in question.

51. It was further submitted that any claim based on an alleged conspiracy was entirely without merit, given the complete absence of any evidence from which any agreement could be inferred. Counsel submitted that there was simply no evidence to support the allegation that the third defendant entered into an agreement with either or both of the first and second defendants to embark on a course of action which was designed to damage the plaintiff, and that such allegation should be rejected.

52. It was further submitted that the evidence established that at all times when acting for the first defendant, the third defendant was doing no more than proceeding according to his instructions, in circumstances where those instructions provided a proper basis for the first and second applications. Counsel further submitted that other allegations that the third defendant submitted false claims, or otherwise misled the Local Court at any time, should be similarly rejected, as should the proposition that the third defendant was a party to a course of conduct which was designed to deprive the plaintiff of her rights.

THE APPLICABLE PRINCIPLES

53. In Burton v Office of the Director of Public Prosecutions [66] Bell P (as the Chief Justice then was) said the following (citations omitted):

[16] Unless properly understood and delimited, the continued existence of the tort of collateral abuse of process could lead to the proliferation of litigation based on the “mere occurrence of the earlier litigation with an added assertion of improper motive or absence of legitimate purpose in bringing or defending the proceedings”. In this context, Lord Sumption has referred to “a principled reluctance on the part of the courts to countenance civil liability for invoking the jurisdiction of the court”.

66. (2019) 100 NSWLR 734; [2019] NSWCA 245 at [16].

54. His Honour proceeded[67] to articulate the following elements of the tort:

    67. At [42].

1. the alleged tortfeasor must have instituted a legal process for an improper purpose;

2. the legal process in question must have been misused in order to obtain some advantage or benefit “entirely outside" that afforded by the legal process which was invoked – hence, a collateral advantage;

3. the process in question must have been deployed in furtherance of the alleged tortfeasor's improper purpose by way of an overt act or threat, distinct from the pursuit of the proceeding itself according to its ordinary course; and

4. the plaintiff must have suffered special damage. [68]

   68. At [42].

55. His Honour also observed that:

1. the tort will not be established simply as a result of the identification or existence of an improper purpose; [69]

2. whilst proceedings may or may amount to an abuse of process and be liable to be stayed or dismissed for that reason, it does not follow from that fact alone that the tort of collateral abuse of process has been committed; [70]

3. a plaintiff must prove, in addition to improper purpose, deployment of the relevant process in furtherance of that purpose, by way of an overt act or threat distinct from the pursuit of the proceeding itself according to its ordinary course; [71]

4. it is not sufficient, for the tort to be established, that the proceedings simply have a vexatious or oppressive effect on the defendant; [72] and

5. the proceedings must have been brought in order to “coerce” the defendant in some way entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate; [73]

   69. At [22]; [26].

   70. At [22].

   71. At [31].

   72. At [33].

   73. At [33].

56. An earlier decision of Williams v Spautz [74] established that:

    74. (1992) 174 CLR 509; [1992] HCA 34.

1. the asserted improper purpose must be the predominant purpose for bringing the proceedings; [75]

2. in that context, “predominant" means “the only substantial intention”; and [76]

3. where the purpose is not to prosecute proceedings to their finality, but use them as a means of obtaining some advantage for which the proceedings were not designed, or for a collateral advantage beyond what the law offers, the tort is made out. [77]

CONSIDERATION

75. At 529.

76. At 537.

77. At 526 – 527.

The case against the first defendant

57. Bearing the above principles in mind, I turn firstly to the plaintiff’s case against the first defendant.

58. To begin with, it is relevant to note that s 19 of the DV Act is in the following terms:

Court may make apprehended personal violence order

(1) A court may, on application, make an apprehended personal violence order if it is satisfied on the balance of probabilities that a person has reasonable grounds to fear and in fact fears--

(a) the commission by the other person of a personal violence offence against the person, or

(b) the engagement of the other person in conduct in which the other person--

(i) intimidates the person, or

(ii) stalks the person,

being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.

(2) Despite subsection (1), it is not necessary for the court to be satisfied that the person for whose protection the order would be made in fact fears that such an offence will be committed, or that such conduct will be engaged in, if--

(a) the person is a child, or

(b) the person is, in the opinion of the court, suffering from an appreciably below average general intelligence function.

(3) For the purposes of this section, conduct may amount to intimidation of a person even though--

(a) it does not involve actual or threatened violence to the person, or

(b) it consists only of actual or threatened damage to property belonging to, in the possession of or used by the person.

59. Section 19 confers a discretion to make an ADVO if the Court is satisfied, on the balance of probabilities, of one or other of the factors in s 19(1)(a) or (b). In making the interim order, the final order and the second order, the Magistrate in each case must have been so satisfied. Such determinations give rise, in each case, to an issue estoppel. [78] They tend completely against the proposition that the first defendant brought any of the proceedings for an improper purpose. They expressly support the proposition that the first defendant brought the proceedings because he and the second defendant were in fear of the plaintiff. The first defendant’s case incorporated a denial that he had brought the proceedings for any improper purpose. I have no reason to reject that denial.

    78. Blair v Curran (1939) 62 CLR 464 at 531 per Dixon J (as his Honour then was); [1939] HCA 23.

60. It follows that the first element of the tort of collateral abuse of process is not made out as against the first defendant. On that basis alone, the plaintiff’s case against the first defendant must fail.

61. Even if that first element was made out, the evidence fails to establish that the first defendant misused the relevant processes in order to gain some collateral advantage. On the evidence before me, the only advantage the first defendant sought to gain was the protection of himself and the second defendant. The making of the interim order, the first order and the second order reflect the fact that in each case, a determination was made that the first defendant as in fear, and entitled to the relief sought.

62. The plaintiff’s case in this respect (at least in part) was that the collateral purpose for which the proceedings had been brought was a desire on the part of the first defendant to cause her harm. There is absolutely no evidence to support such a conclusion.

63. The plaintiff also asserted that the first defendant’s collateral purpose was to misuse the proceedings for the purpose of advancing his position in the Family Court proceedings. In this regard the plaintiff pointed, in particular, to the first defendant’s affidavit of 22 July 2018 which was filed in those proceedings. It is certainly the case that in the course of that affidavit[79] the first defendant made lengthy references to (inter alia) the various proceedings he had brought against the plaintiff in the Local Court. However, there is an obvious difference between referring to particular subject matter on the one hand, and using it for an improper purpose on the other. It is, in my view, telling that the written submissions of counsel for the first defendant in the Family Court proceedings [80] did not advance a single substantive submission in favour of the first defendant based on the proceedings brought by him against the plaintiff in the Local Court. That tends wholly against the proposition that the first defendant used the Local Court proceedings in some impermissible way. I am not satisfied that those proceedings were “used” by the first defendant at all in the Family Court proceedings, let alone used by him in some impermissible way.

    79. SCB Tab 7 commencing at [31].

    80. S

64. Finally, there is simply no evidence which establishes that the first defendant was a party to any conspiracy, or that he was party to a fraud.

65. For all of these reasons, the plaintiff’s case against the first defendant fails.

The case against the second defendant

66. On the evidence before me, although the second defendant was named in the various proceedings in the Local Court as a person in need of protection, and was a person for whose benefit the proceedings were brought (and orders made), she did not institute any proceedings at all. All of the proceedings were instituted by the first defendant. That, in my view, presents an insurmountable hurdle for the plaintiff in establishing a case against the second defendant.

67. Even if that conclusion is incorrect, and even if the second defendant were regarded as having instituted the proceedings in the Local Court against the plaintiff, for the reasons set out in relation to the first defendant I am not satisfied that the second defendant did so for any improper purpose.

68. Moreover, and bearing in mind that the second defendant was not a party to the proceedings between the plaintiff and the first defendant in the Family Court, and also bearing in mind the plaintiff’s articulation of her case in cross-examination, there is no evidence whatsoever that the second defendant misused the proceedings to obtain some collateral advantage.

69. Finally, my observations as to the lack of evidence of conspiracy or fraud in respect of the first defendant apply equally to the second defendant.

70. For all of these reasons, the plaintiff’s case against the second defendant fails.

The case against the third defendant

71. The plaintiff’s case against the third defendant fails for a different reason. The third defendant was not a party to any of the proceedings brought by the first defendant against the plaintiff in the Local Court. The fact that the third defendant acted in a professional capacity as the first defendant’s solicitor could not make him responsible for any tortious conduct in which the first defendant may have been found to have engaged (but in which I have found he did not engage in any event). The tort of collateral abuse of process can only be committed by a person who is a party to the proceedings which are said to constitute the abuse, or in which the abuse is said to have occurred (in this case, the proceedings brought by the first defendant in the Local Court). It follows that the plaintiff’s case against the third defendant must fail. [81]

    81. Maxwell-Smith and anor. v S and E Hall Pty Limited and anor. (2014) 86 NSWLR 481; [2014] NSWCA 146 at [59] per Barrett JA (Beazley P and McColl JA agreeing).

ORDERS

72. Shortly prior to publishing these reasons I was informed by the solicitor for the first defendant that the plaintiff was recently the subject of orders made pursuant to the Bankruptcy Act 1966 (Cth). In those circumstances, it is appropriate that a copy of this judgment be provided to her Trustee.

72. For the foregoing reasons I make the following orders:

1. The proceedings are dismissed.

2. The plaintiff is to pay the costs of the first, second and third defendants, as agreed or assessed.

3. I direct the solicitor for the first defendant to provide a copy of this judgment to the plaintiff’s Trustee in Bankruptcy within 7 days.

Endnotes

Decision last updated: 16 December 2022