1. Order that the claim for relief in paragraph 3 of the applicant’s notice of motion filed on 30 May 2017 be dismissed with costs. 2. Refer the proceedings to the Registrar with the view to setting a hearing date for the balance of the notice of motion.
Catchwords:
PRACTICE AND PROCEDURE – jurisdiction of single Judge of Appeal sitting alone – application to set aside orders of Court of Appeal pursuant to Uniform Civil Procedure Rules r 36.16 and to stay costs orders pending determination of the application – whether proceedings “finally determined” – whether stay should be granted – Supreme Court Act 1970 (NSW), ss 46(1)(b), 46(2)(b), 69C(2)(b)
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) R C Byrnes, Solicitor (Respondent)
Solicitors: n/a (Applicant) R C Byrnes (Respondent)
File Number(s):
2016/266890
Judgment
HIS HONOUR: The applicant, Ms Majak, seeks orders setting aside orders made by the Court of Appeal on 19 May 2017 and a stay of costs orders made in the Local Court and the District Court pending the determination of her application. Her application arises from proceedings in the Local Court for apprehended…
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 4)
Sign in free to access the full text
Details
AGLC
Majak v Rose (No 4) [2017] NSWCA 170
Case
[2017] NSWCA 170
Decision Date
CaseChat Overview and Summary
The applicant, Majak, sought to set aside orders made by the Court of Appeal and to stay costs orders pending the determination of that application. The respondent was Rose. The application was heard by White JA, a single Judge of Appeal.
The primary legal issues before White JA were whether the proceedings had been "finally determined" for the purposes of the relevant rules, and whether a stay of the costs orders should be granted. The applicant relied on Uniform Civil Procedure Rules r 36.16 and provisions of the *Supreme Court Act 1970* (NSW), including sections 46(1)(b), 46(2)(b), and 69C(2)(b).
White JA dismissed the applicant's claim for relief as set out in paragraph 3 of the notice of motion, finding that it was not a matter that could be determined by a single Judge of Appeal sitting alone. However, the proceedings were referred to the Registrar to set a hearing date for the remaining aspects of the notice of motion. The dismissed claim was ordered to be dismissed with costs.
Orders
Orders of the court
1. Order that the claim for relief in paragraph 3 of the applicant’s notice of motion filed on 30 May 2017 be dismissed with costs.
2. Refer the proceedings to the Registrar with the view to setting a hearing date for the balance of the notice of motion.