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

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…

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 (No 2)

Details

AGLC: Majak v Rose (No 2) [2016] NSWCA 337
Case: [2016] NSWCA 337
Decision Date: 06 December 2016

CaseChat Overview and Summary

In *Majak v Rose (No 2)*, the Court of Appeal of New South Wales considered an application by Ms Majak to set aside an order of Meagher JA and to declare that the execution of certain costs orders made against her had been stayed. The dispute arose from proceedings in the Local Court and the District Court concerning apprehended domestic violence orders, and subsequent appeals and applications for judicial review.

The central legal issue before the Court of Appeal was the interpretation and application of section 69C of the *Supreme Court Act 1970* (NSW). Specifically, the court had to determine whether the statutory stay of execution provided by section 69C(2) extended to costs orders made in proceedings related to apprehended domestic violence orders, even where no specific order for a stay had been made under section 69C(4).

The Court of Appeal reasoned that section 69C(2) operates as a statutory stay of execution for all orders made by the District Court on appeal from the Local Court, with the exception of apprehended domestic violence orders themselves. The court held that this statutory stay encompassed the execution of costs orders made in connection with such proceedings. Consequently, the court set aside the previous order of Meagher JA, declared that the execution of the costs orders against Ms Majak had been stayed by operation of section 69C(2), and directed Mr Rose to notify affected parties of this judgment. The court also made orders regarding the costs of the notices of motion.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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