Majak v Rose (No 5)

Case [2017] NSWCA 238

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Majak v Rose (No 5) [2017] NSWCA 238
Hearing dates:On the papers
Decision date: 28 September 2017
Before: Leeming JA; Simpson JA; Emmett AJA
Decision:

(1)  Dismiss the Notice of Motion filed on 30 May 2017.

 (2)  The applicant to pay the third respondent’s costs of the motion.
Catchwords: PRACTICE – application to reopen under UCPR 36.16 – no basis for reopening – observations as to the nature of the power – application dismissed
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A)
Cases Cited: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6
Majak v Rose (No 3) [2017] NSWCA 104
Majak v Rose (No 4) [2017] NSWCA 170
Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2); Carelli v FS Architects Pty Ltd (No 2) [2008] NSWCA 205
State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29; [1982] HCA 51
Waterhouse v Independent Commission Against Corruption (No 2) [2015] NSWCA 362
Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672; [1982] HCA 41
Category:Consequential orders (other than Costs)
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:
Not applicable (Applicant)
Submitting appearance (First and Second Respondents)
Not applicable (Third Respondent)

  Solicitors:
Not applicable (Applicant)
Crown Solicitor’s Office (First and Second Respondents)
Russell C Byrnes (Third Respondent)
File Number(s):2016/266890

Judgment

  1. THE COURT: In Majak v Rose (No 3) [2017] NSWCA 104 this Court dismissed with costs an Amended Summons filed by the applicant, Ms Zofia Majak. By Notice of Motion filed on 30 May 2017, the applicant seeks, pursuant to r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), orders setting aside those orders and an interim order staying the execution of certain costs orders.

  2. On 3 July 2017 White JA dismissed the application to stay the execution of the costs order: Majak v Rose (No 4) [2017] NSWCA 170. Accordingly, only the orders seeking to set aside the judgment are now in issue. For the reasons that follow, the Notice of Motion should be dismissed with costs.

  3. In the original proceedings, the applicant sought judicial review of several decisions of the Local Court and the District Court relating to an Apprehended Domestic Violence Order (“ADVO”) made against her in 2014. The history of the matter is set out in the reasons for the decision in Majak v Rose (No 3). Relevant history has also been set out by White JA in Majak v Rose (No 4). We therefore do not propose to restate the history in any more detail than is necessary to deal with the current application. These reasons should be read in conjunction with those of Majak v Rose…

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AGLC
Majak v Rose (No 5) [2017] NSWCA 238
Case
[2017] NSWCA 238
Decision Date

CaseChat Overview and Summary

The applicant, Majak, sought to reopen proceedings against the third respondent, Rose, in the New South Wales Court of Appeal. The dispute concerned an application to reopen a judgment under rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW).

The primary legal issue before the Court was whether there was a basis to reopen the proceedings under UCPR 36.16. This rule permits a court to reopen a judgment or order in certain circumstances, and the Court was required to determine if those circumstances were met in this instance.

The Court observed that the power to reopen under UCPR 36.16 is not a broad one and is generally confined to correcting errors or omissions. In this case, the Court found no basis for reopening the proceedings and dismissed the applicant's Notice of Motion. The applicant was ordered to pay the third respondent's costs of the motion.

Orders

Orders of the court

(1) Dismiss the Notice of Motion filed on 30 May 2017.

(2) The applicant to pay the third respondent’s costs of the motion.

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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