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 2022Date 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 DefendantRepresentation: Counsel:
Solicitors:
Self-represented – Plaintiff
J Loofs SC and M Klooster – First and Second Defendants
I Griscti – Third Defendant
Self-represented – Plaintiff
Byrnes Legal – First and Second Defendant
Mullane and Lindsay – Third Defendant
File Number(s): 2019/400687 Publication restriction: Nil
Judgment
INTRODUCTON
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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.
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In setting out my factual findings I should note that many of the relevant facts are not in dispute, for the…
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- AGLC
- Majak v Rose [2022] NSWSC 1697
- Case
- [2022] NSWSC 1697
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the proceedings for the ADVO were brought for an improper purpose and whether they were used in a way that amounted to collateral abuse of process. The court had to assess whether there was sufficient evidence to support the plaintiff's claims of conspiracy, fraud, and collateral abuse of process. Furthermore, the court needed to determine whether the plaintiff had established that the proceedings were brought for an ulterior motive or had been misused.
In delivering the judgment, the court found that the plaintiff had not provided adequate evidence to support her claims. The court held that there was no evidence that the proceedings had been brought for an improper purpose or that they had been used in some impermissible way. Consequently, the court dismissed the plaintiff's claims against all defendants. The court concluded that the evidence did not substantiate the allegations of conspiracy, fraud, or collateral abuse of process, and therefore, the plaintiff's case could not succeed.
The court made an order dismissing the plaintiff's claims with costs. The plaintiff was ordered to pay the costs of the first and second defendants jointly and severally, and the third defendant was to recover her costs from the first defendant. This outcome reflected the court's determination that the plaintiff had failed to prove her case on the balance of probabilities.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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