Majak v Rose (No 2)

[2016] NSWCA 337

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Majak v Rose (No 2) [2016] NSWCA 337
Hearing dates:	22 November 2016
Decision date:	06 December 2016
Before:	McColl JA; Basten JA; Leeming JA
Decision:	1. Set aside order 2 made by Meagher JA on 12 October 2016. 2. Each party’s costs of the notice of motion filed 5 September 2016 be that party’s costs of the summons filed 5 September 2016. 3. Declare that, no order having been made pursuant to s 69C(4) of the Supreme Court Act 1970 (NSW), the execution of the costs orders made by the Local Court and the District Court against Ms Majak in relation to proceedings 2014/00044950-001 (including the writ of levy in case 2016/00248593 and the garnishee orders) has been stayed by reason of s 69C(2) of the Supreme Court Act 1970 (NSW). 4. Direct that Mr Rose notify within 7 days of today all persons affected by steps taken by him to execute the orders referred to in order 3 above, including Ms Majak’s employer and bank, of this judgment. 5. Order that Mr Rose pay Ms Majak’s costs of the notice of motion filed 25 October 2016, in the amount of $390.
Catchwords:	PRACTICE – stay of execution – judicial review of decision of District Court dismissing appeal from Local Court – statutory stay of execution of orders other than apprehended domestic violence orders – Supreme Court Act 1970 (NSW), s 69C – statutory stay extends to execution of costs orders made following applications for apprehended domestic violence orders
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56 Crimes (Appeal and Review) Act 2001 (NSW), ss 28, 63 Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 72, 84, 85, 93, 99 Criminal Procedure Act 1986 (NSW), s 215 District Court Act 1973 (NSW), s 176 Supreme Court Act 1970 (NSW), s 69C
Cases Cited:	Bandara v Director of Public Prosecutions [2016] NSWCA 140 Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115
Category:	Principal judgment
Parties:	Zofia Majak (Applicant) Alan Wesley Rose (Third Respondent)
Representation:	Counsel: Z Majak (Applicant in person) I R Coleman SC (Third Respondent)   Solicitors: Russell Byrnes Solicitor (Third Respondent)
File Number(s):	2016/266890
Decision under appeal	Court or tribunal: Court of Appeal Citation: [2016] NSWCA 278 Date of Decision: 12 October 2016 Before: Meagher JA File Number(s): 2016/266890

Decision under review

Judgment

1. THE COURT: Ms Zofia Majak has sought relief in this Court’s supervisory jurisdiction in respect of six decisions of the Local Court and the District Court, made between 23 October 2014 and 4 August 2016. Her summons was filed on 5 September 2016. By notice of motion filed on the same day, Ms Majak sought five orders. The first three were interlocutory orders staying a writ of levy of property for the amount of $7885.99, certain garnishee orders issued in relation to orders as to costs, and a stay of enforcement of costs orders made by the Local Court and District Court. All those orders derived from applications for apprehended domestic violence orders in various proceedings between Ms Majak and the respondent, Mr Alan Wesley Rose, further details of which are given below. The fourth and fifth orders also related to part heard proceedings in the Local Court between the same parties.

2. Ms Majak’s summons remains undetermined. Her notice of motion came before Meagher JA on 26 September 2016. By reserved judgment delivered on 12 October 2016, the notice of motion was dismissed with costs: Majak v Rose [2016] NSWCA 278. Ms Majak has applied by a notice of motion filed on 25 October 2016 seeking to review that part of the decision of Meagher JA which dismissed that part of her earlier notice of motion seeking orders 1, 2 and 3.

3. Ms Majak provided five pages of “grounds for seeking variation of Orders made on 12 Oct 2016” which amount in substance to submissions and, in accordance with direction of the Registrar, she supplied a further submission of five single‑spaced pages and 37 pages of appendices. On the afternoon before the matter was heard, Ms Majak filed a further written submission of 3 pages with 8 pages of attachments. At all times in this Court, Ms Majak has represented herself.

4. Before Meagher JA, Mr Rose was represented by a solicitor, and in this Court, by senior counsel. However, at no stage either in this Court or before Meagher JA did either party refer to s 69C of the Supreme Court Act 1970 (NSW).

5. On the day after the hearing, a letter relevantly in the following terms was sent to the parties:

“The Court seeks submissions in relation to s 69C(1) and (2) of the Supreme Court Act 1970 (NSW), which are in the following terms:

(1) This section and section 69D apply to proceedings in the Court for judicial review of a determination made by the District Court in appeal proceedings relating to a conviction or order made by the Local Court (or part of such a conviction or order) or sentence imposed by the Local Court.

(2) The execution of the following is stayed when proceedings seeking judicial review are commenced:

(a) a sentence imposed as a consequence of a conviction,

(b) any order other than an apprehended violence order under the Crimes (Domestic and Personal Violence) Act 2007.

It would appear that the requirements in s 69C(1) are satisfied. If that is so, then it would seem arguable that some or all of the orders as to costs which are presently being executed were automatically stayed by reason of the commencement of the proceedings seeking judicial review.

The Court would be grateful for any submissions on these points which the parties wish to make, including on the question of costs of the motions in this Court and before Meagher JA in the event that there is a statutory stay.”

6. Pursuant to that request, Mr Rose supplied a submission on 29 November 2016 conceding that the orders subject to the current motion were stayed until the completion of the judicial review proceedings by the operation of s 69C(2).

7. That concession was rightly made. In order to explain why, it is necessary to say something about the regime pursuant to which apprehended violence orders and costs orders are made, and from which appeals may be brought.

8. The Crimes (Domestic and Personal Violence) Act 2007 (NSW) authorises the making of interim and final orders, either of which may be varied or revoked by application under s 72. Subsection 99(1) provides that a court may, in apprehended violence order proceedings, award costs to the applicant for the order or decision concerned or the defendant in accordance with this section. Subsection 99(2) provides that costs are to be determined in accordance with Division 4 of Part 2 of Chapter 4 of the Criminal Procedure Act 1986 (NSW). Within that Division of the latter Act, s 215 authorises a court, at the end of summary proceedings, to order that the accused person pay such professional costs as the court considers just and reasonable, if the accused person is convicted or an order is made against the accused person.

9. For many years, appeals have lain to the District Court from convictions and sentences imposed summarily by the Local Court and its predecessors. The current provisions governing such appeals are found in Part 3 of the Crimes (Appeal and Review) Act 2001 (NSW), which includes, in s 28(3), the power to make such order as to costs as the District Court thinks just. Subsections 84(2), (3), (4) and (5) of the Crimes (Domestic and Personal Violence) Act 2007 assimilate within that existing regime a right of appeal in relation to orders under that Act. Such an appeal lies both from the making of an apprehended violence order and from the making of a costs order under s 99 (see s 84(2)(a) and (c)). In particular, s 84(3)(a) provides that such an appeal “may be made under Part 3 of the Crimes (Appeal and Review) Act 2001 in the same way as an application may be made under that Part by a defendant against a conviction arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986”.    

10. Speaking generally, s 63 of the Crimes (Appeal and Review) Act imposes a stay of execution of orders made by the Local Court until an appeal to the District Court has been determined. However, s 85 of the Crimes (Domestic and Personal Violence) Act makes different provision in respect of orders made under that Act from which an appeal has been brought. There is no automatic stay: a stay may be imposed if the court is satisfied that it is safe to do so, having regard to the need to ensure the safety and protection of the protected person. Section 85(4) makes the position quite clear, providing that “This section has effect despite section 84 of this Act and section 63 of the Crimes (Appeal and Review) Act 2001”.

11. Section 93 of the Crimes (Domestic and Personal Violence) Act 2007 provides that “the jurisdiction conferred on the District Court by this Act is conferred on the Court in its criminal jurisdiction”. Hence, relevantly for present purposes, the decision of the District Court hearing an appeal, whether from a domestic violence order, or from a costs order, is exercising its criminal jurisdiction, and its judgment is protected from review except for jurisdictional error: District Court Act 1973 (NSW), s 176; Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115; Bandara v Director of Public Prosecutions [2016] NSWCA 140 at [10].

12. The decision of the District Court may be reviewed in this Court for jurisdictional error. Section 69C of the Supreme Court Act 1970 (NSW) deals with the position as to stays.

13. In its application to the facts of this case, it is clear that s 69C(1) is satisfied. Ms Majak has brought proceedings seeking judicial review of the decision of the District Court dismissing her appeal from orders made by the Local Court.

14. In those circumstances, s 69C(2) operates to stay “any order” other than an apprehended violence order. The purpose of the section resembles the purpose of s 63 of the Crimes (Appeal and Review) Act, namely, to prevent the vice that the appeal may be rendered worthless because, by the time it has been heard and determined, the sentence or order which is sought to be set aside has already been wholly or substantially served or performed.

15. An order as to costs, whether made by the Local Court pursuant to s 99 of the Crimes (Domestic and Personal Violence) Act or by the District Court on appeal pursuant to s 28(3) of the Crimes (Appeal and Review) Act answers the description of “any order” in s 69C(2). The purpose reflected in s 69C(2) extends to such orders. Steps taken in execution of such orders may be entirely futile, and may cause hardship, if ultimately it is determined that they should not have been made.

16. Further, s 69C(2)(b) itself contains an exception, for “an apprehended violence order”. Such an order is essentially negative, and is made to protect a person. Consistently with the purposes disclosed in s 85 of the Crimes (Domestic and Personal Violence) Act, the statutory stay does not extend to such an order. But an order as to costs is not itself an “apprehended violence order” within the scope of that exception. If there were any doubt about that, it may be seen that s 69C(4) grants power for the Court to alter the operation of the statutory stay. The existence of that power is another reason not to construe the scope of the automatic stay narrowly; in any particular case, if the statutory stay operates harshly, application made be made under s 69C(4).

17. For those reasons, Mr Rose was correct to accept that the statutory stay effected by s 69C(2) applied to all of the orders which were the subject of Ms Majak’s interlocutory notice of motion. Strictly, Ms Majak’s notice of motion dated 5 September 2016 was not necessary, although it has served the useful purpose of identifying the legal position pending the determination of Ms Majak’s proceedings in this Court’s supervisory jurisdiction. There is no need to alter the substantive order made by the primary judge that the notice of motion be dismissed. However, in light of the fact that third parties (including Ms Majak’s employer) are affected, this Court should declare that, no order having been made pursuant to s 69C(4), the execution of the costs orders made by the Local Court and the District Court against Ms Majak (including the writ of levy of property and the garnishee orders) is stayed by reason of s 69C(2) of the Supreme Court Act 1970 (NSW). No further steps should be taken to execute those orders. To that end, this Court’s orders will include a direction that Mr Rose notify any persons affected by steps taken by him to execute the orders in his favour, including Ms Majak’s employer and bank, of this Court’s judgment, so that they are aware of the stay of execution which he now accepts is in place.

18. Ms Majak supplied, within the time specified in the Court’s letter, nine single-spaced pages of submissions, and eight pages of materials. Ms Majak agrees with Mr Rose that the execution of the costs orders made by the District Court are stayed. She maintains that the writ of possession was not stayed. That may conceivably be the case, depending on the circumstances in which it was obtained (the precise details of which are less than pellucidly clear from the materials in this Court). However, in circumstances where the moving party accepts that that writ has been stayed, the appropriate course is to accept Mr Rose’s concession that all the orders have been stayed and declare that to be the case.

19. The balance of Ms Majak’s submissions need not be summarised in any detail. Save for a submission as to costs (which is addressed below), they were not responsive to the Court’s request for further submissions. They include serious allegations, directed to the conduct of the legal practitioners retained by Mr Rose. Even if Ms Majak had been given leave to make such submissions, there was no foundation in the evidence for them. It is likewise unnecessary to deal with a further submission which Ms Majak chose to supply on 1 December 2016.

20. Although nothing now turns upon it, a complaint having been made by Ms Majak about procedural fairness of the hearing before Meagher JA, it is desirable to address it. The transcript of the hearing before his Honour, which occupies 43 pages, most of which was occupied by Ms Majak’s submissions, puts in proper context the first submission made in Ms Majak’s submissions filed on 8 November 2016, which was:

“During the hearing on 26/09/16, I asked for fifteen minutes to present my submission, but Judge Meagher wouldn’t allow me so much time, I only had about seven minutes to present my case. The time restriction made it impossible to explain the complex issues that evolved under the legislation, which allows orders to be made without evidentiary foundation.”

21. The transcript records that Ms Majak addressed his Honour for the first 19 pages of transcript. Justice Meagher then advised that “I’m going to have to stop now, because I’ve got to take another matter involving two applicants who are in custody and it was specifically fixed for 11.15.” The other matter was interposed and, after it was dealt with, his Honour asked Ms Majak how long she would be. Ms Majak advised 15 minutes. She was told that she would have a further 5 minutes, followed by 10 minutes in reply. At that stage, Meagher JA said:

“HIS HONOUR: If you want a stay of the orders, you have to persuade me that you have an arguable basis for appealing; in other words, that there is an arguable error of law on the part of his Honour Judge Bozic. At the moment I have nothing which assists me to form that view, because I don’t have his reasons, I don’t have any clear summary of where you say he erred” [transcript 26 September 2016, p 21].

22. The seven pages of transcript occupied by Ms Majak’s submissions in reply (pp 37-43) were directed to the other aspects of the notice of motion.

23. To the extent that complaint is made about Ms Majak receiving an insufficient opportunity to advance her case, it must be rejected.

24. One matter which was raised in Ms Majak’s submissions supplied on 21 November 2016, and reiterated in her further submissions supplied on 30 November 2016, is her view that an asserted jurisdictional error made in 2014 must be determined before the balance of her proceedings. For the benefit of the future management of these proceedings, it should be noted that there is no obligation to address the issues arising on Ms Majak’s summons in any particular order, still less to split those issues. What should occur, and as soon as may be in accordance with s 56 of the Civil Procedure Act 2005 (NSW), is the final hearing of the summons.

25. There remains the question of costs. Dealing first with the costs of the motion reviewing the orders made by Meagher JA, Mr Rose submits there should be no order as to costs, on the basis that Ms Majak has succeeded on a ground not raised by her. Ms Majak submits that Mr Rose should pay her costs of filing the notice of motion in the amount of $390.

26. Ms Majak should obtain a costs order in her favour in that amount. Although neither party drew s 69C to the attention of Meagher JA or this Court, Ms Majak’s notice of motion reviewing part of the decision of Meagher JA should not have been necessary. In circumstances where Mr Rose was represented and Ms Majak was not, there is no sufficient reason to depart from the starting point that costs follow the event. That is to say, as it is appropriate for this Court to grant declaratory relief, Ms Majak has been successful and should obtain her limited costs as a self-represented person in this Court.

27. Turning to the costs of Ms Majak’s motion which was determined by Meagher  JA, his Honour ordered that Ms Majak pay Mr Rose’s costs of that motion. Ms Majak seeks an order that Mr Rose pay her costs of that motion (once again in the amount of $390). Mr Rose maintains that Meagher JA’s order should not be altered, having regard to Ms Majak’s failure in relation to that part of the motion which was not reviewed.

28. Meagher JA’s order as to costs was made on a basis where neither party alerted his Honour to s 69C(2). It is accordingly necessary to reexercise the discretion as to costs. In the circumstances of this case, the appropriate order is to set aside his Honour’s order, and order that each party’s costs of that notice of motion be his or her costs of the summons.

29. Accordingly, the Court’s orders are:

1. Set aside order 2 made by Meagher JA on 12 October 2016.

2. Each party’s costs of the notice of motion filed 5 September 2016 be that party’s costs of the summons filed 5 September 2016.

3. Declare that, no order having been made pursuant to s 69C(4) of the Supreme Court Act 1970 (NSW), the execution of the costs orders made by the Local Court and the District Court against Ms Majak in relation to proceedings 2014/00044950-001 (including the writ of levy in case 2016/00248593 and the garnishee orders) has been stayed by reason of s 69C(2) of the Supreme Court Act 1970 (NSW).

4. Direct that Mr Rose notify within 7 days of today all persons affected by steps taken by him to execute the orders referred to in order 3 above, including Ms Majak’s employer and bank, of this judgment.

5. Order that Mr Rose pay Ms Majak’s costs of the notice of motion filed 25 October 2016, in the amount of $390.

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Decision last updated: 06 December 2016