Majak v Rose (No 4)

[2017] NSWCA 170

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Majak v Rose (No 4) [2017] NSWCA 170
Hearing dates:	Monday, 3 July 2017
Decision date:	12 July 2017
Before:	White JA
Decision:	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)
Legislation Cited:	Civil Procedure Act 2005 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Supreme Court Act 1970 (NSW)
Cases Cited:	Australian Securities and Investment Commission v Sigalla (No. 4) [2011] NSWSC 62; (2011) 80 NSWLR 113 Autodesk Inc v Dyason (No. 2) (1993) 176 CLR 300; [1993] HCA 6 Bailey v Marinoff (1971) 125 CLR 529 Blake v Norris (1990) 20 NSWLR 300 Boensch v Pascoe [2016] NSWCA 191; (2016) 311 FLR 101 Burrell v R [2008] HCA 34; (2008) 238 CLR 218 Chen v Lym International; Chen v Marcolongo [2009] NSWCA 121 D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133; (2008) 75 NSWLR 462 DJL v Central Authority (2000) 201 CLR 226 Dyason v Butterworth [2015] NSWCA 52 Gamser v Nominal Defendant (1977) 136 CLR 145 Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 Majak v Rose (No 2) [2016] NSWCA 337 Majak v Rose (No 3) [2017] NSWCA 104 Majak v Rose [2016] NSWCA 278 Malouf v Prince (No 2) [2010] NSWCA 51 McGinn v Cranbrook School [2015] NSWCA 378 McGinn v Cranbrook School [2016] NSWCA 226 Quick v Stoland Pty Ltd (1998) 87 FCR 371 Waterhouse v Independent Commission Against Corruption (No 2) [2015] NSWCA 362 Wentworth v Wentworth (1994) 35 NSWLR 726 Wentworth v Woollahra Municipal Council (1982) 149 CLR 672; [1982] HCA 41
Category:	Procedural and other rulings
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) R C Byrnes, Solicitor (Respondent)   Solicitors: n/a (Applicant) R C Byrnes (Respondent)
File Number(s):	2016/266890

Judgment

1. 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 domestic violence orders (ADVOs), from costs orders made in those proceedings, and from unsuccessful appeals by her to the District Court.

2. By summons filed on 5 September 2016, as amended on 3 February 2017 Ms Majak sought the review of:

(a)   two decisions of his Honour Lee LCM of 23 October 2014 described (or misdescribed) as decisions:

●   “to add Order ‘13’ to ADVO without a Notice of Motion”; and

●   “to commence proceedings for extension of ADVO without an application filed pursuant to sec 72 of the Crimes (Domestic & Personal Violence) Act”;

(b)   a decision of his Honour Judge Mahony of the District Court of 25 November 2015 described as decisions “to dismiss the appeal from decision to extend the ADVO made on 12 June 2014 by 6 months and refused to deal with Notice of Motion pursuant to Reg 36.15 to deal with irregularities that affected the decision to grant extension of the ADVO”; and

(c)   a decision of his Honour Judge Bozic of the District Court of 7 June 2016 described as a decision “to dismiss the appeal granting costs on indemnity basis and refuse to deal with irregularities and fraud in obtaining the judgment to extend the ADVO on 25 June 2015.”

3. On 19 May 2017 the Court of Appeal dismissed with costs Ms Majak’s amended summons (Majak v Rose (No 3) [2017] NSWCA 104). By notice of motion filed on 30 May 2017 Ms Majak seeks the following relief:

“1 That the judgment made on 19 May 2017 in relation to the Judicial Review under Supervisory Jurisdiction be set aside pursuant to Reg 36.16 UCPR.

2   That the judgment made on 19 May 2017 in relation to the Judicial Review under Supervisory Jurisdiction be set aside until:

a)   the Supreme Court determines a question of law whether the Local Court had inherent jurisdiction to change the consent (without admissions) ADVO on 23/10/14 by adding ‘Order 13’, without consent, in a process not authorised by any procedure available to the Local Court; and

b)   the Supreme [Court] determines a question of law whether the Local Court had jurisdiction to conduct proceedings to change the ADVO without an application from the police or from the protected person (Alan Rose) as prescribed in Sec. 72A of the Crimes (Domestic & Personal Violence) Act; or alternatively

c)   the District Court determines the Application seeking special proceedings to be granted to deal with false statements made by Alan Rose and Marc Riviere in the proceedings related to the expired ADVO sought for the purpose of impeachment of these judgments due to fraud upon the court.

3   That the execution of any cost order granted by the lower courts and by the Supreme Court in relation to the ADVO proceedings be stayed until the application in relation to Order 1) and 2) is determined.”

4. By her amended summons Ms Majak sought judicial review of the decisions of the courts below and certain declarations. There is no dispute that although the Local Court and District Court were exercising criminal jurisdiction, the Court of Appeal was exercising civil jurisdiction and the Uniform Civil Procedure Rules apply. Ms Majak relies upon UCPR r 36.16(1) and (3A). They provide:

“36.16Further power to set aside or vary judgment or order

(cf SCR Part 40, rule 9)

(1)     The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.

…

(3A)     If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.”

5. The notice of motion was filed within the 14 days of the orders made on 19 May 2017.

6. Ms Majak identified four grounds for the relief sought in paragraphs 1 and 2 of the notice of motion. Although not presented in the same order as described below, the grounds were as follows.

7. First, Ms Majak submitted that the Court of Appeal reached its decision without regard to relevant documents, in particular, documents relevant to its rejection of her application to review the decision (characterised by Ms Majak as two decisions) of his Honour Lee LCM of 23 October 2014. The Court of Appeal and the courts below described this as a decision to correct the record of orders made by consent on 12 June 2014. She contends the decision was to add a new order to an existing ADVO without grounds on which to do so, and without an appropriate application. Ms Majak described this as the principal ground of her application.

8. Secondly, Ms Majak repeated her argument, that was rejected by the Court of Appeal, that under s 72A(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) an application for extension of a final ADVO cannot be made by a solicitor for an “interested party”, but must made by that party personally.

9. Thirdly, Ms Majak contended that the solicitor for the respondent had engaged in dishonest and misleading conduct by falsely representing matters to the Local Court and this disentitled the respondent from seeking orders for costs in the courts below.

10. Fourthly, Ms Majak submitted that the Court of Appeal had failed to address her substantive argument that the decision of his Honour Judge Mahony of 25 November 2015 revealed jurisdictional error. His Honour dismissed an appeal from orders of the Local Court of 25 June 2015 (Lee LCM) extending for six months the final ADVO made on 12 June 2014. The ADVO expired on 11 December 2014, but was taken to have continued in force until the application for extension was dealt with (Crimes (Domestic and Personal Violence) Act 2007, s 73(8)). Ms Majak submitted that having found, as his Honour did, that it was not necessary for the making or extension of an ADVO for the applicant to establish actual violence, it was nonetheless necessary for his Honour to identify the reasonable grounds for Mr Rose to fear, and to find that he did in fact fear, the commission by her of a domestic violence offence against him, or that she would engage in intimidatory conduct or stalking or otherwise be satisfied of a matter falling within s 16 of the Crimes (Domestic and Personal Violence) Act 2007. She submitted that Mahony DCJ did not make any such findings and that the Court of Appeal failed to deal with her submission.

11. The notice of motion was referred to me sitting as a single Judge of Appeal in the Referrals list. At an early stage I said that I assumed that the relief with which I was concerned was that claimed in paragraph 3 of the notice of motion, namely the application for a stay of costs orders pending the determination of the notice of motion. That understanding was apparently not shared by the parties. It does not appear that when the proceedings were referred from the Registrar’s list that any order was made identifying whether it was the whole of the notice of motion or only the relief sought in paragraph 3 that was so referred. Ms Majak made no submission as to whether I had power as a single Judge of Appeal to grant the relief sought in paragraphs 1 and 2 of the notice of motion. As I understood her position it was that if I did have that power then I should deal with the application in paragraphs 1 and 2, and if not, I should deal only with the application in paragraph 3. Mr Byrnes who appeared for the respondent, Mr Rose, initially submitted that I did have the power to deal with the whole of the notice of motion and urged me to do so. In the course of submissions he acknowledged that there were difficulties with that contention, but did not resile from his initial position.

12. These reasons will first address the issue of whether I have power as a single Judge of Appeal to make all of the orders sought in the notice of motion, and if not, whether, as Ms Majak contends, the costs orders of the courts below are in any event automatically stayed pending the determination of the notice of motion by virtue of s 69C(2)(b) of the Supreme Court Act 1970 (NSW). For the reasons which follow I have concluded that I do not have the power to make the orders sought in paragraphs 1 and 2 of the notice of motion and that the costs orders of the court below are not automatically stayed by virtue of s 69C(2)(b). These reasons will then address the approach to be taken for resolving the stay application of the costs orders in the courts below and of the Court of Appeal of 19 May 2017, the principles to be applied on the application to reopen the proceeding where a notice of motion seeking to set aside the orders made by the Court of Appeal is filed within 14 days of the orders being entered (UCPR r 36.16(1) and (3A)), and whether Ms Majak has shown a reasonably arguable case for the reopening of the Court of Appeal’s decision on any of the grounds advanced. I have concluded that she has not done so and the stay application in paragraph 3 of the notice of motion should be refused.

Power to Deal with the Whole of the Notice of Motion

13. Section 46 of the Supreme Court Act 1970 (NSW) relevantly provides:

“46Powers of Judge of Appeal

(1)     A Judge of Appeal may exercise the powers of the Court of Appeal:

(a)     to give any judgment by consent or make any order by consent,

(b)    to dismiss an appeal or other proceedings for want of prosecution or for other cause specified in the rules,

(c)     to dismiss an appeal or other proceedings on the application of the appellant or plaintiff, or

(d)     to deal with costs and other matters incidental to the matters mentioned in paragraphs (a), (b) and (c).

(2)     A Judge of Appeal may exercise the powers of the Court of Appeal:

…

(b)     to make any order or give any direction in any appeal or other proceedings, but not an order or direction involving the determination or decision of the appeal or other proceedings.

(3)     Subsection (2) does not authorise a Judge of Appeal to grant or refuse leave to appeal to the Court of Appeal.” (Emphasis added.)

14. The first question is what are the “proceedings” in which I am asked to make orders. “Proceedings” is not defined in the Supreme Court Act 1970. The word can have a variety of meanings depending upon the context in which it is used (Blake v Norris (1990) 20 NSWLR 300 at 306; Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 387-388; Australian Securities and Investment Commission v Sigalla (No. 4) [2011] NSWSC 62; (2011) 80 NSWLR 113 at [24]-[29], 121-122).

15. Ms Majak’s summons for judicial review of orders of the courts below commenced a proceeding. That proceeding was determined by the orders of the Court of Appeal of 19 May 2017 when her amended summons was dismissed. Her notice of motion of 30 May 2017 seeks to re-open that proceeding. I do not consider that the notice of motion is itself a separate proceeding within the meaning of s 46(2). If it were, I would have no power to determine any part of it.

16. Such a construction would rob s 46(2)(b) of any real effect and would be inconsistent with an expansive approach to the construction of s 46 enjoined by Wentworth v Wentworth (1994) 35 NSWLR 726 (at 728 per Mahoney JA). It does not necessarily follow that for the purposes of s 46(1)(b) and (c) the notice of motion might not itself be a separate proceeding. A broad interpretation of the power might suggest that it could be. But s 46(1)(b) is not engaged. I would not have the power to make the orders sought in the notice of motion under s 46(1)(b). I would have power to dismiss the notice of motion for cause stated in the rules, which would include the power to dismiss the application under UCPR r 13.4(1)(b) as not disclosing a reasonable cause of action, if an application for such relief had been made by the respondent. (The “rules” referred to in s 46(1)(b) means rules of the Court from time to time and in force. The rules of the Court are taken to include the Uniform Civil Procedure Rules to the extent to which they are applicable to the Court: Civil Procedure Act 2005 (NSW), s 10). However the respondent made no application under UCPR r 13.4. Ms Majak would be entitled to notice of any such application and be entitled to be heard on the question whether any order should be made dismissing her application for cause stated in the rules. Although, for the reasons which follow, I have concluded that none of the grounds on which Ms Majak relies for the relief sought in paras 1 and 2 of the notice of motion is reasonably arguable, it does not follow that I can dismiss her application for cause stated in the rules under s 46(1)(b).

17. At the moment, the proceeding commenced by summons is determined by the order dismissing Ms Majak’s amended summons. It is finally disposed of. If the relief sought in paragraphs 1 or 2 of the notice of motion were granted that proceeding would no longer be finally determined. The decision dismissing the amended summons would be set aside. The proceeding would be reinstated for further consideration. The outcome of the further consideration might again be that the proceeding be dismissed, or it might not. Mr Rose submitted that if the orders sought in the notice of motion are made, the proceeding would still have to be determined, and therefore any order setting aside the existing orders would not determine the proceedings. So much may be accepted. But that does not mean that an order setting aside the existing orders would not “involve” a determination or decision of the proceeding.

18. It seems to me that an order setting aside a decision of the proceeding “involves” the determination or decision of the proceeding. What has already been decided would no longer be decided. Likewise, an order dismissing the application would confirm that what is presently decided remains decided. Again, such an order “involves” the determination or decision of the proceeding.

19. I was not referred to any decision in relation to the power of a single Judge of Appeal under s 46(2) and I am aware of none that is directly on point. The Court of Appeal has determined that a single judge acting under s 46(2)(b) may dismiss an appeal as incompetent (Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 at [15] and Boensch v Pascoe [2016] NSWCA 191; (2016) 311 FLR 101 at [23]). It may be noted that in McGinn v Cranbrook School [2015] NSWCA 378, Leeming JA relied on s 46(1)(b) as the relevant source of power for a judge to dismiss an appeal as incompetent as UCPR r 51.41 provides for a respondent to move for dismissal of an appeal as incompetent. On appeal in that case (McGinn v Cranbrook School [2016] NSWCA 226) Gleeson JA, with whom Beazley P and Simpson JA agreed said that the orders of Leeming JA were made under the powers conferred by s 46(2). But whatever the source of power to dismiss an appeal as incompetent (which on one view might be thought to be a determination of the appeal), I do not think the authorities on that issue provide any relevant analogy. Nor do they contain reasoning which is of assistance on the present question.

20. Accordingly, in my view I have no power as a single Judge of Appeal to make the orders sought in paragraphs 1 and 2 of the notice of motion.

21. However, a stay of the costs orders below and the costs order made by the Court of Appeal on 19 May 2017 pending the determination of the notice of motion would not involve a determination or decision of the proceedings. I have power to stay the costs orders pending the determination of the balance of the relief claimed in the notice of motion, either in the Court’s inherent jurisdiction or pursuant to s 67 or s 135 of the Civil Procedure Act 2005 (NSW).

Costs Orders are not Presently Stayed

22. The costs orders the subject of the impugned decisions were as follows:

(a) On 10 December 2015 Lee LCM ordered pursuant to s 99 of the Crimes (Domestic and Personal Violence) Act 2007 that Ms Majak pay Mr Rose’s costs in the amount of $20,206.56 that arose from a contested application brought by Mr Rose and determined by his Honour on 25 June 2015 for the extension of an ADVO against Ms Majak on which application Ms Majak was partially unsuccessful;

(b)   on 7 June 2016 Bozic DCJ dismissed an appeal from that order. His Honour also ordered that Ms Majak pay costs of $5,060 in respect of her unsuccessful appeal;

(c)   on 25 November 2015 Mahony DCJ dismissed Ms Majak’s appeal from orders made by Lee LCM on 25 June 2015. His Honour declined to make a lump sum costs order, but ordered that Ms Majak pay Mr Rose’s costs of the appeal.

(d)   on 19 May 2017 the Court of Appeal ordered Ms Majak to pay the costs of the proceedings for judicial review.

23. On 12 October 2016 Meagher JA dismissed an application by Ms Majak for a stay of a Writ of Levy of Property, garnishee orders and otherwise a stay of the enforcement of the costs orders made in the Local Court and the District Court that were the subject of these proceedings (Majak v Rose [2016] NSWCA 278). This was on the basis that neither the grounds of appeal nor Ms Majak’s submissions identified any basis on which relief might be granted (at [19]).

23. On 6 December 2016 the Court of Appeal (McColl, Basten and Leeming JJA) determined Ms Majak’s application to review Meagher JA’s orders. The application was dismissed save as to a costs order that had been made. The Court of Appeal itself identified a ground that neither party had previously raised, namely that the costs orders of the Local Court and the District Court were all made in the exercise of the criminal jurisdiction of those courts and s 69C(2)(b) of the Supreme Court Act 1970 applied so as automatically to stay the orders the subject of the application for review until the final determination of the proceedings (s 69(4)) (Majak v Rose (No 2) [2016] NSWCA 337).

24. Ms Majak submitted that it can now be seen that her proceedings for judicial review have still not been “finally determined” because she has filed a notice of motion within the time provided for under r 36.16(3A) of the Uniform Civil Procedure Rules such that the Court of Appeal has power and is asked to set aside the orders made on 19 May 2017 and deal with the matter afresh. She submits that until that application is determined there remains no final determination of the proceedings. As the costs orders of the courts below are automatically stayed by s 69C(2) that stay will continue until her proceedings for judicial review are finally determined subject to any order or direction of the Court. If this argument is correct, Ms Majak would not need any order for a stay of the costs orders of the Local Court and District Court. She would still need an order to stay execution of the costs order made by the Court of Appeal on 19 May 2017.

25. Mr Rose did not seek a contrary order under s 69C(4). He submitted that the judicial review proceedings were finally determined by the orders of 19 May 2017 and that remains the position, notwithstanding Ms Majak’s having filed her notice of motion of 30 May 2017. I agree with that submission. In my view the proceeding for judicial review has been finally determined, notwithstanding that Ms Majak now seeks to re-open that determination.

26. Rule 36.16(3A) was introduced following the change to procedure for the entering of orders whereby orders will be entered by the Court itself on its computerised record. The rule provides a limited opportunity to ameliorate the principal that subject to only limited qualifications an order that finally disposes of proceedings, once entered, cannot be reopened (Bailey v Marinoff (1971) 125 CLR 529; Gamser v Nominal Defendant (1977) 136 CLR 145; DJL v Central Authority (2000) 201 CLR 226; Burrell v R [2008] HCA 34; (2008) 238 CLR 218; D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [34], 17; Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133; (2008) 75 NSWLR 462 at [15]). In Malouf v Prince (No 2) [2010] NSWCA 51 the Court of Appeal (McColl, Macfarlan JJA and Nicholas J) said (at [11]):

“[11] The 14-day window afforded by UCPR 36.16(3A) creates an exception to the principle that ordinarily a court has no power to set aside a final judgment after it has been entered: Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2); Carelli v FS Architects Pty Ltd (No 2) [2008] NSWCA 205 (at [8]) per Campbell JA (McColl JA and Handley AJA agreeing) (Special Leave Refused: FS Architects Pty Ltd v Rockcote Enterprises Pty Ltd; FS Architects Pty Ltd v Carelli [2009] HCASL 52); see also Bennette v Cohen (No 2) [2009] NSWCA 162 per Tobias JA (at [9]) (Ipp and Campbell JJA agreeing); Deputy Cmr of Taxation v Meredith (No 2) [2008] NSWCA 133 (at [6]–[7]) per Basten JA (Ipp JA agreeing).”

28. The fact that the Court has always had power to set aside or vary a final order prior to the order being entered, and now has power to do so if a notice of motion is filed within 14 days after entry of the order, does not relevantly affect the finality of the order. Final orders can be set aside on various grounds, e.g. on appeal, or if procured by fraud, and, can also be set aside in limited circumstances on an application made within 14 days under r 36.16(3A) where there is good reason to consider that the judgment has proceeded on a misapprehension as to the facts or the law through no fault of the party seeking the rehearing (see paras [31]-[32] below). The possibility of the order being reopened does not affect the status of the order as a final order. In my view the proceeding for judicial review has been “finally determined” within the meaning of s 69C(4), notwithstanding Ms Majak’s application to reopen. It follows that she needs to seek a stay not only of the costs order made on 19 May 2017, but a stay of the costs orders which were the subject of her summons for judicial review.

Ground for Granting a Stay

29. In Chen v Lym International; Chen v Marcolongo [2009] NSWCA 121 Beazley JA (as her Honour then was) held that to grant a stay of a judgment under appeal it may not always be necessary for an applicant to establish arguable grounds of appeal and that the broader question is whether there is a proper basis for a stay (at [15]). In answering that question the existence of arguable grounds will often and perhaps usually be relevant. The Court will be astute to ensure that its process is not used inappropriately, as by an applicant with a hopeless appeal seeking to keep a successful party out of the fruits of victory (at [15]).

30. In these circumstances it seems to me that it is necessary for Ms Majak to establish that she has a reasonably arguable claim for the relief sought in paragraphs 1 and 2 of the notice of motion. If that is shown, I think the costs orders should be stayed and to do so would be consistent with the philosophy apparently underlying s 69C(2) of the Supreme Court Act.

Grounds for Reopening

31. The power to set aside the orders of 19 May 2017 must be exercised with great caution having regard to the interests of finality of litigation (Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684; [1982] HCA 41). In Autodesk Inc v Dyason (No. 2) (1993) 176 CLR 300; [1993] HCA 6 Gaudron J said that a judgment that has not been entered should be set aside if the interests of justice so required (at 322). Her Honour added that the circumstances in which justice requires that course were in practice extremely rare, particularly if there has been an opportunity for full argument. The interests of justice include the public interest in the finality of litigation. Mason CJ (at 303) and Brennan J (at 308) emphasised that the jurisdiction is to be exercised sparingly, but may be exercised if it appears that the Court has proceeded according to a misapprehension of the facts or the relevant law where the misapprehension could not be attributed solely to the neglect or default of the parties seeking the rehearing. In such a case that party has not had a real opportunity to be heard. Mason CJ emphasised that the purpose of the jurisdiction “is not to provide a back door method by which unsuccessful litigants can seek to re-argue their cases”.

32. In Waterhouse v Independent Commission Against Corruption (No 2) [2015] NSWCA 362 the Court of Appeal (Basten JA, Sackville AJA and Emmett AJA) added two “notes of caution”. Their Honours said (at [17]):

“First, there is a distinction to be drawn between the court acting upon a misapprehension as to the facts or the relevant law, on the one hand, and, on the other, the court reaching a conclusion which, in the view of the applicant for re-opening, involves a mistake. Secondly, there is a distinction to be drawn between the situation where the court misapprehends the facts, on the one hand, and, on the other, the situation where the court does not refer in its reasons to some matter which, in the belief of the person seeking re-opening, deserved express reference.”

33. What then of the merits of the application? The reasons which follow should be read in conjunction with the reasons of Simpson JA in Majak v Rose (No 3).

First Ground: Misapprehension of Order Made on 12 June 2014

34. Ms Majak focused her challenge on the order of Lee LCM of 23 October 2014 that she characterised as changing the existing ADVO. As Simpson JA observed (Majak v Rose (No 3) at [15], [31]), although Ms Majak characterised the relevant decision of Lee LCM of 23 October 2014 as being a decision to “add” order 13 to an existing ADVO and to extend the ADVO without an application filed pursuant to s 72 of the Crimes (Domestic and Personal Violence) Act, the actual decision was to accede to a request by the solicitor representing Mr Rose, a Mr Riviere, to correct the court’s record of an order made on 12 June 2014, which order had been made by consent.

35. Simpson JA, with whose reasons Leeming JA and Emmett AJA agreed, dealt with this claim at some length (at [32]-[44]). On this application Ms Majak produces a copy bearing the seal of the Local Court of the order of 12 June 2014 which does not include a non-contact order (whether numbered either 7 or 13) prohibiting her from approaching or contacting the protected persons by any means except through a Mr Cwalina and then only for the purposes of completing a building development. She says that a copy of this order was within a folder of documents called the “White Folder” that was prepared by the court staff as provided to her, but apparently missing from the “White Folder” provided to Simpson JA because her Honour stated (at [34]) that the order Ms Majak claims was changed was not included in the papers in the White Folder. Ms Majak contends that the Court did not obtain what she calls the “original version of the ADVO which provides a key to all other issues” (Affidavit of 30 May 2017 para. 7).

36. The production of the order of 12 June 2014 that does not contain the non-contact order does not take the matter any further. The transcript of the hearing on 23 October 2014 which Simpson JA recited records Mr Riviere as saying that the final orders received from the Court did not reflect the orders that had been made. Simpson JA stated (at [37]) that it could be inferred from this and the subsequent discussions that there was in existence a printed record that omitted order 13. The document produced by Ms Majak simply confirms the correctness of that inference.

37. On the present application Ms Majak has deposed (at para. 31) that her initial reaction (at the hearing on 12 October 2014) to the request made by Mr Riviere to add order 13 was to say that she was coerced into accepting the ADVO (on 12 June 2014). She also deposed:

“I also said that I did not remember what orders I agreed to 4 months earlier, but having the written orders, which were sent to me by the Court, these were the orders I considered to be the valid orders. I did not consent to any changes to these orders.”

38. The transcript of the hearing on 23 October 2014 does record Ms Majak as having said that she did not recall everything that was said on the hearing on 12 June 2014 (T18), but as explained by Simpson JA (at [38]), Lee LCM confirmed that an order had been made by consent on 12 June 2014 that included a “condition” that she not contact either protected person except through Mr Cwalina and for the limited purpose stated. As Simpson JA also observed Ms Majak did not contest Mr Riviere’s assertion or Lee LCM’s confirmation that the 12 June 2014 orders included that order.

39. In her affidavit of 30 May 2017 Ms Majak refers to what Lee LCM had said at a hearing on 10 December 2015, namely that:

“… the Court record clearly notes, in my handwriting, that same condition in the exact terms as it was ultimately put as condition 13 when the final order was corrected and reprinted by the Registry”.

She refers to paragraph 89 of a written submission (called Revised Submission) filed on 3 February 2017 in which she submitted that this statement was “in contradiction with the earlier story about acceptance of the final ADVO made on 29 July 2014”. But the passage on which Ms Majak relied related not to the final order of 12 June 2014 but to earlier interim orders. Mr Riviere stated:

“But I think she continued [scil. consented] to the continuation of the interim order”,

to which his Honour responded:

“No, I’ve got the Court file. There’s actually no note of that. Only the interim order was continued … on 25 February and again on 1 April but I haven’t noted that it was by consent without admissions which is my usual practice. So it was simply continued on the basis of the original order that I made on 18 February.”

40. Ms Majak contended that this statement proved that, contrary to what was said by the learned magistrate on 10 December 2015, there had been no note in his handwriting on the court file that the final order of 12 June 2014 contained the same conditions as was ultimately recorded as condition 13 when the final order was corrected and reprinted. The transcript establishes nothing of the kind. Ms Majak complains that the Court of Appeal did not address her written submission that referred to this material. But a court is not required to respond to every subsidiary point of a submission, particularly where it is baseless. Still less would a judgment be reopened to deal with such a point.

41. Ms Majak was represented at a hearing in the Local Court on 9 April 2015. She refers to the cross-examination on that hearing of Mr Rose in which she contends Mr Rose admitted that the initial order made on 12 June 2014 was amended and added to later. The transcript of the hearing of 9 April 2015 records that objection was then taken to the cross-examination as having proceeded on a misapprehension and the solicitor then appearing for Ms Majak accepted that that was so and did not revisit the question.

42. Ms Majak identified the so-called change to the orders of 12 June 2014 on 23 October 2014 as the principal ground upon which she seeks to reopen the Court of Appeal’s orders. In my view there is no substance to that contention and she does not have an arguable claim that could result in the Court of Appeal’s orders of 19 May 2017 being set aside on this ground.

Second Ground: Section 72A

43. What I have numbered as the second ground of challenge is related to the first. It was fully considered and rejected by the Court of Appeal on the basis that the application made to Lee LCM on 12 October 2014 was not an application to vary the orders of 12 June 2014, but to correct the record of the orders made on that day, and in any event under s 72A(2) an application may be made by “an interested party” by the interested party acting through a solicitor who acts on his or her behalf (at [43]). Ms Majak simply seeks to reargue a question that has been decided against her on the ground that, she contends, the decision is erroneous. The jurisdiction she invokes cannot be used for that purpose.

Third Ground: Alleged Dishonest and Misleading Conduct by a Solicitor

44. Ms Majak submitted that the Court of Appeal had failed to deal with her submissions that Mr Rose’s solicitor, Mr Riviere, had knowingly misled the Local Court in other but related proceedings. As particularised in her oral submissions before me, her contention was that Mr Riviere had made a false submission to the Local Court on 25 June 2015 in which he misrepresented the effect of correspondence that she had written to the Department of Transport Roads and Maritime Services (“RMS”). Mr Riviere submitted that Ms Majak had contacted RMS saying “I’m very concerned about Mr Rose’s driving, he has microsleeps and he has eye issues” as a result of which RMS required Mr Rose to get his eyes tested (Transcript 25 June 2015 T18.42). Ms Majak said that her submission to RMS so far as it related to a driver’s eyesight related only to Mr Rose’s father, Mr Oswald Rose, in whose name the car was registered and not to Mr Alan Rose. On 25 June 2015 Lee LCM was dealing with the application by Mr Rose and Ms Robera seeking to vary the final order made on 12 June 2014 by extending it for a further period of two years. His Honour extended the order for a further period of six months from 25 June 2015. Ms Majak’s email to RMS was one of the matters taken into account by the learned magistrate in reaching his decision (Transcript 25 June 2015 T29).

45. It should be said at once that there is nothing in the material to justify the allegation of dishonesty made against Mr Riviere. The fact was that Ms Majak’s email to RMS did lead to the Department’s requiring Mr Rose to take a medical fitness test. The relevance of that to an application for extension of the ADVO might be another question, but it is not the issue.

46. In her amended summons the grounds for review specifically referred to Mr Riviere in only one paragraph, namely ground 2 (see Majak v Rose (No 3) at [29]).

47. In her Revised Submission of 3 February 2017 that was before the Court of Appeal Ms Majak asserted that there was no evidence of her reporting that Mr Allan Rose was unfit to drive. That was not so. The Court of Appeal did not address that particular submission. That submission was not relevant to any of the grounds of review. Two of the grounds of review that are presently relevant were grounds 1(a) and 2 (see Majak v Rose (No. 3) at [29]). In relation to ground 1(a) Ms Majak submitted in her Revised Submission that she had provided three written submissions for the appeal against costs (that is the appeal to the District Court dealt with by his Honour Judge Bozic). She referred in that respect to allegations she had made in those submissions to Mr Riviere’s allegedly “distorting the evidence” or making false submissions or his having “misrepresented” the evidence. Under ground (2) she complained that his Honour had not considered allegedly improper conduct by Mr Riviere in relation to a Property Recovery Order. Judge Bozic was hearing an appeal against the costs orders made on 10 December 2015 by Lee LCM following his determination of 25 June 2015. The substantive orders (other than costs) made on 25 June 2015 had been dealt with in the District Court by Judge Mahony and the appeal was dismissed. It would not have been proper for Judge Bozic to have entertained Ms Majak’s application in effect to reopen the appeal on which she was unsuccessful. His Honour said:

“Mrs Majak has sought to argue that the original ADVO was void for a variety of reasons, including jurisdictional errors on the part of the magistrate, apprehended bias by the magistrate, alleged fabrication of evidence in relation to the surplus of court documents, perjury on the part of Mr Rose, abuse of the court process and use of the court process for a collateral purpose.

These various grounds were all raised by Mrs Majak in order to attack the original decision of the magistrate by extending the ADVO by a further six months. Mrs Majak has previously appealed against the decision of the magistrate. On 26 June 2015 an appeal was lodged against the magistrate’s decision to extend the ADVO for six months. An appeal at [scil. to] the District Court was dismissed.

I do not therefore propose to go behind that decision. Mrs Majak had the opportunity of raising the matters she now relies on in the appeal against the decision to extend the ADVO, and to revisit the correctness of the magistrate’s decision in those circumstances would be to permit a collateral attack on a decision which has been the subject of an unsuccessful appeal.”

48. There is clearly no error of law on the face of the record. Nor was any such error contended for in Ms Majak’s grounds of review. In the Court of Appeal the whole of ground 1 was characterised as jurisdictional error in the asserted failure of Bozic DCJ to deal with whether the costs were just and reasonable (at [63]). That issue was addressed. Simpson JA observed (at [68]) that the transcript of the proceedings before Bozic DCJ showed that despite his Honour’s best efforts, Ms Majak sought to address issues that did not arise in relation to the limited issues that were before him. The Court also rejected her submission that his Honour had not read or taken into account her submissions. I do not think that there are arguable grounds for the Court of Appeal to reopen its decision on this ground.

Fourth Ground: Jurisdictional Error in Decision of Judge Mahony

49. What I have renumbered as the fourth ground is that the decision of Mahony DCJ dismissing the appeal from the substantive orders of 25 June 2015 was infected by jurisdictional error. Ms Majak submitted that having rejected her contention that for the ADVO to be extended it was necessary to show that there had been actual violence, it was still necessary for the judge to be satisfied that grounds existed under s 16 for the extension of the ADVO and to identify those grounds. She referred in this respect to Dyason v Butterworth [2015] NSWCA 52 at [70] and [72].

50. This contention was raised as part of ground 5 (see para [29]).

51. Simpson JA quoted the “four bases” identified by Mahony DCJ as the bases upon which Ms Majak appealed. Those bases did not include that the jurisdictional criteria for extending the ADVO had not been satisfied, except by reference to the submission that none of the orders was supported by a judicial finding that domestic violence had actually taken place or was used. Simpson JA observed that the transcript and evidence before his Honour had not been tendered in the Court of Appeal and in particular that there was no evidence that any issue was raised concerning the statutory requirements for the making of an ADVO (at [59]).

52. On the application before me Ms Majak did not seek to point to any evidence that had been placed before the Court of Appeal that any issue had been raised before Mahony DCJ concerning the statutory requirements for the making of an ADVO (other than the misplaced submission that a judicial finding of actual violence was necessary). Ms Majak has not demonstrated that the Court of Appeal proceeded under any misapprehension of the facts or the law. I do not think this ground is reasonably arguable either.

53. Accordingly, I have concluded that none of the grounds advanced on the application before me is reasonably arguable. I do not consider that the costs orders of the courts below or the costs order of the Court of Appeal should be stayed pending the determination of paragraphs 1 and 2 of the notice of motion.

54. I make the following orders:

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.

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Amendments

01 August 2017 - Paragraph numbering corrected.

Decision last updated: 01 August 2017