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

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.
In setting out my factual findings I should note that many of the relevant facts are not in dispute, for the…

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 [2022] NSWSC 1697
Case: [2022] NSWSC 1697
Decision Date: 16 December 2022

CaseChat Overview and Summary

The case of Majak v Rose involved the plaintiff, Majak, who brought a claim against the first defendant, Rose, her former partner, as well as the second and third defendants who were associated with Rose. Majak alleged that Rose and the other defendants conspired to bring proceedings for an Apprehended Domestic Violence Order (ADVO) against her in the Local Court. Majak further contended that these proceedings were brought with the improper intention of harassing and intimidating her and were used as a tool for collateral abuse of process. The case was heard and determined in the Federal Circuit Court of Australia.

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