Majak v Rose (No 3) - [2017] NSWCA 104

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Majak v Rose (No 3) [2017] NSWCA 104
Hearing dates: 28 March 2017
Decision date: 19 May 2017
Before: Leeming JA at [1]; Simpson JA at [2]; Emmett AJA at [82]
Decision:
Amended Summons dismissed with costs

Catchwords:
ADMINISTRATIVE LAW – declaratory relief – judicial review – correction of court record of an Apprehended Domestic Violence Order – whether jurisdictional error – application for correction made by solicitor – no application for variation of order as originally made – no error established

ADMINISTRATIVE LAW – declaratory relief – judicial review – asserted decision by Local Court to commence proceedings to Apprehended Domestic Violence Order – no such decision – no error established – no basis for relief

ADMINISTRATIVE LAW – declaratory relief – judicial review – appeal against order extending Apprehended Domestic Violence Order – appeal dismissed – whether jurisdictional error – whether appeal hearing was conducted as a rehearing – whether denial of procedural fairness – no error established
ADMINISTRATIVE LAW – declaratory relief – judicial review – appeal against costs order following contested application for extension of Apprehended Domestic Violence Order – whether jurisdictional error – whether failure to consider grounds for awarding costs on an indemnity basis – whether failure to address submissions made by appellant – no error established
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), ss 4, 8, 18
Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 9, 16, 22, 72, 72A, 84, 99
Criminal Procedure Act 1986 (NSW), s 215
District Court Act 1973 (NSW), s 176
Supreme Court Act 1970 (NSW), ss 69, 75,
Uniform Civil Procedure Rules 2005 (NSW), r 36.15
Cases Cited: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26
Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115
Lazarus v Independent Commission Against Corruption [2017] NSWCA 37
Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2016] NSWCA 379
Spanos v Lazaris [2008] NSWCA 74
Category: Principal judgment
Parties: Zofia Majak (Applicant)
Local Court of New South Wales (Gosford) (First Respondent)
District Court of New South Wales (Gosford) (Second Respondent)
Alan Wesley Rose (Third Respondent)
Representation:
Counsel:
In person (Applicant)
Submitting appearance (First and Second Respondents)
L P Robberds QC (Third Respondent)
Solicitors:
Not applicable (Applicant)
Crown Solicitor’s Office (First and Second Respondents)
Russell C Byrnes (Third Respondent)

File Number(s): 2016/266890
Decision under appeal

Court or tribunal:

District Court; Local Court

Date of Decision:

07 June 2016

Before:

Bozic DCJ; Mahony DCJ; Lee LCM

File Number(s):

2014/44950

Judgment

LEEMING JA: I agree with Simpson JA.
SIMPSON JA: By Amended Summons filed on 3 February 2017, the applicant seeks, pursuant to s 75 of the Supreme Court Act 1970 (NSW), declaratory relief in respect of four decisions, all of which were made in the context of proceedings between the parties under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (“the DaPV Act

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 3)

Details

AGLC: Majak v Rose (No 3) [2017] NSWCA 104
Case: [2017] NSWCA 104
Decision Date: 19 May 2017

CaseChat Overview and Summary

The applicants, Majak and Rose, sought various forms of judicial review and declaratory relief against orders made by the Local Court and the District Court concerning an Apprehended Domestic Violence Order (ADVO). The proceedings before the Court of Appeal involved challenges to the correction of the court record of an ADVO, an asserted decision by the Local Court to commence proceedings for an ADVO, an appeal against an order extending an ADVO, and an appeal against a costs order made following a contested application for the extension of an ADVO.

The primary legal issues before the Court of Appeal were whether jurisdictional error had occurred in relation to the correction of the ADVO record, the alleged decision to commence ADVO proceedings, the hearing of the appeal against the extension of the ADVO, and the appeal against the costs order. Specifically, the court considered whether the appeal hearing was conducted as a rehearing, whether there was a denial of procedural fairness, whether the Local Court had made the asserted decision to commence proceedings, and whether the District Court had failed to consider grounds for awarding costs on an indemnity basis or address submissions made by the appellant.

The Court of Appeal found no jurisdictional error in any of the matters brought before it. It determined that no error was established in relation to the application for correction of the ADVO record, as no application for variation of the order as originally made had been made. Similarly, the court found no basis for relief regarding the asserted decision to commence ADVO proceedings, as no such decision had been made. The appeal against the order extending the ADVO was dismissed, with the court finding no error in the conduct of the appeal hearing or any denial of procedural fairness. Furthermore, the appeal against the costs order was also dismissed, as the court found no error in the District Court's handling of the grounds for awarding costs or its consideration of the appellant's submissions.

Consequently, the amended summons was dismissed with costs.

Orders

Orders of the court

Amended Summons dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Majak v Rose (No 3) [2017] NSWCA 104
Hearing dates:	28 March 2017
Decision date:	19 May 2017
Before:	Leeming JA at [1]; Simpson JA at [2]; Emmett AJA at [82]
Decision:	Amended Summons dismissed with costs
Catchwords:	ADMINISTRATIVE LAW – declaratory relief – judicial review – correction of court record of an Apprehended Domestic Violence Order – whether jurisdictional error – application for correction made by solicitor – no application for variation of order as originally made – no error established ADMINISTRATIVE LAW – declaratory relief – judicial review – asserted decision by Local Court to commence proceedings to Apprehended Domestic Violence Order – no such decision – no error established – no basis for relief ADMINISTRATIVE LAW – declaratory relief – judicial review – appeal against order extending Apprehended Domestic Violence Order – appeal dismissed – whether jurisdictional error – whether appeal hearing was conducted as a rehearing – whether denial of procedural fairness – no error established ADMINISTRATIVE LAW – declaratory relief – judicial review – appeal against costs order following contested application for extension of Apprehended Domestic Violence Order – whether jurisdictional error – whether failure to consider grounds for awarding costs on an indemnity basis – whether failure to address submissions made by appellant – no error established
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW), ss 4, 8, 18 Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 9, 16, 22, 72, 72A, 84, 99 Criminal Procedure Act 1986 (NSW), s 215 District Court Act 1973 (NSW), s 176 Supreme Court Act 1970 (NSW), ss 69, 75, Uniform Civil Procedure Rules 2005 (NSW), r 36.15
Cases Cited:	Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26 Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 Lazarus v Independent Commission Against Corruption [2017] NSWCA 37 Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2016] NSWCA 379 Spanos v Lazaris [2008] NSWCA 74
Category:	Principal judgment
Parties:	Zofia Majak (Applicant) Local Court of New South Wales (Gosford) (First Respondent) District Court of New South Wales (Gosford) (Second Respondent) Alan Wesley Rose (Third Respondent)
Representation:	Counsel: In person (Applicant) Submitting appearance (First and Second Respondents) L P Robberds QC (Third Respondent) Solicitors: Not applicable (Applicant) Crown Solicitor’s Office (First and Second Respondents) Russell C Byrnes (Third Respondent)
File Number(s):	2016/266890
Decision under appeal	Court or tribunal: District Court; Local Court Date of Decision: 07 June 2016 Before: Bozic DCJ; Mahony DCJ; Lee LCM File Number(s): 2014/44950