Majak v Rose (No 5)

[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 (No 3) and Majak v Rose (No 4). For simplicity, we shall refer to the third respondent, Mr Alan Rose, who was the only active respondent, as the respondent.

Background

4. Stated briefly, the applicant and the respondent lived in a domestic relationship for some time before 2014. On 12 June 2014 the applicant consented (without admissions) to an ADVO pursuant to the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (“the DaPV Act”), restraining her for a period of six months from, inter alia, interfering with the respondent or his de facto partner.

5. On 16 October 2014 the applicant applied to annul the ADVO and on 22 October 2014 the respondent applied to extend the ADVO.

6. The matter came before Lee LCM on 23 October 2014. The applicant’s annulment application was dismissed, and the respondent’s application for an extension was stood over. The respondent’s legal representative noted that the record of the final order did not reflect the actual order that Lee LCM had made on 12 June. After consulting his handwritten notes, Lee LCM accepted that the record of the order omitted a condition that he had imposed, namely that the applicant must not approach or contact the respondent or his de facto by any means except through a named person and only for a specific stated purpose. Lee LCM asked for the record to be corrected, and it appears that this was done on that date. The additional condition appears on Justicelink records as “Order 13”.

7. The extension application was then heard on 25 June 2015, and the ADVO was extended by 6 months with costs.

8. Various appeals against the extension of the ADVO and the costs order followed, the details of which are not presently relevant.

The current application

9. The applicant’s Notice of Motion seeks the following orders:

“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 [sic] 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 court and by the Supreme Court in relation to the ADVO proceedings be stayed until the application in relation Order 1) and 2) is determined.”

10. In support of the Notice of Motion, the applicant filed an affidavit sworn by her on 30 May, which contains both factual matters deposed to by her and submissions. Several documents are annexed to the affidavit. The applicant has also filed a document entitled “Supplemantary [sic] Submission” on 28 June 2017, which is stated to be “made in addition to the Affidavit that was filed on 30/05/17…”. We have had regard to all of this material in considering the current application.

Reopening under r 36.16

11. UCPR 36.16 relevantly provides:

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

(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.

…

(4)  Nothing in this rule affects any other power of the court to set aside or vary a judgment or order.”

The applicant’s Notice of Motion was filed within the time prescribed by sub-r (3A) and, accordingly, sub-r (1) applies.

12. The rule is, like all rules made under the Uniform Civil Procedure Act 2005 (NSW), subject to the “overriding purpose” of facilitating the “just, quick and cheap resolution of the real issues” between the parties to litigation (s 56). It does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them. Nor does it make of a court some sort of magic pudding from which unsuccessful litigants may take slice after slice, ever hopeful that the next will be more palatable than the last. The rule has a serious, but limited, purpose which is to permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal (or, in the case of this Court, an application for special leave to the High Court). Abuse of the rule is detrimental to the administration of justice in unnecessarily and unfairly (to other litigants) taking up the time of the court. Nor does abuse of the rules facilitate the just, quick and cheap resolution of the issues between parties. On the contrary, unwarranted reliance on r 36.16 is oppressive to the successful party and a drain on the Court’s resources.

13. It is well established that a court’s jurisdiction to set aside orders should be exercised sparingly and with caution, having due regard to the importance of the finality of litigation (see, for example, Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672 at 684; [1982] HCA 41; State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38; [1982] HCA 51; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302; [1993] HCA 6; Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2); Carelli v FS Architects Pty Ltd (No 2) [2008] NSWCA 205 at [9]).

14. In Autodesk v Dyason (No 2) at 302 Mason CJ said:

“What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing.”

15. Mason CJ was there particularly concerned with the potential for misuse of the jurisdiction. He said:

“However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. … The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases” (at 303).

16. In the course of his reasons, Mason CJ cited the following passage from Wentworth v Woollahra Municipal Council at 684:

“[T]he circumstances in which this Court will reopen a judgment which it has pronounced are extremely rare. The public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution. Generally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard.” (italics added)

17. In Autodesk v Dyason (No 2) Mason CJ was concerned with the court’s inherent power to set aside or vary a judgment that had been pronounced, but not yet entered, and was in dissent as to the application of the principles. However, as will be seen below, his statement of the principles has been adopted and applied in relation to UCPR 36.16: see, for example: Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2).

18. In considering an application pursuant to UCPR 36.16, this Court in Waterhouse v Independent Commission Against Corruption (No 2) [2015] NSWCA 362 at [17], after quoting the passage in the judgment of Mason CJ in Autodesk v Dyason (No 2) extracted at [14] above, said:

“To that statement one may add two further notes of caution. 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.”

19. The applicant bears the onus of showing that the jurisdiction ought to be exercised in her favour. That entails demonstrating some misapprehension on the part of the Court, and that that misapprehension is not attributable to her conduct of the proceedings.

Resolution

20. It is with these considerations in mind that we have concluded, as set out above, that the Notice of Motion should be dismissed. The following brief reasons will suffice to meet the twin (but competing) objectives of explaining the reasons for our conclusion, and the “just, quick and cheap” resolution of the issues.

21. The terms of the applicant’s Notice of Motion are set out above at [9]. Paragraph 1 is in general terms and does not identify any basis upon which the Court is said to have proceeded under a misapprehension of relevant facts or applicable law. Paragraphs 2(a) and (b) identify two questions of law said to arise for determination. The clear implication is that these questions of law were not determined in the previous judgment. That is not correct. One of the “questions of law” concerns the correction of the record of an order made in the Local Court (by the addition of “Order 13”). The other concerns who has standing to apply for a variation of an ADVO. Each was fully dealt with in the judgment the applicant seeks to have set outside: see pars [31]-[45]. The applicant has not identified any “misapprehension” upon which she contends the Court proceeded. The applicant’s affidavit and supplementary submissions seek to state a number of matters on which, it seems, she urges the Court to set aside the orders. They do not explicitly identify any material “misapprehension” to enliven the Court’s jurisdiction to set aside the orders. What they do is seek to re-agitate the issues already litigated, and raise new matters. Neither is permissible.

22. The applicant commenced her affidavit by deposing that “the main reason” for seeking the orders is that at the hearing of the Amended Summons, there was some confusion concerning what documents were provided to the Court. The transcript of the hearing demonstrates that significant court time and attention was given to ensuring that the applicant was afforded every opportunity to identify, and have copied for her, those documents upon which she sought to rely. The applicant annexed to her affidavit some additional documents. These documents cast no light on the evidentiary foundation for the questions of law decided.

23. The applicant’s affidavit and written submissions strayed over the history of the proceedings between herself and the respondent, going far beyond the questions of law identified in paragraph 2 of the Notice of Motion. The affidavit focussed upon the correction of the order made on 12 June 2014 by Lee LCM, so as to incorporate “Order 13” that had originally been made, but not included in the record. Thus paragraph 41 of the applicant’s affidavit states “I am asking the Court to properly adjudicate the issue of ‘Order 13’, to prevent the expensive appeal to the High Court.”

24. As we have said above, that issue was fully litigated in the previous proceedings, and decided. If it was wrongly decided, the applicant must seek her remedy in the High Court.

25. Likewise, paragraph 29 of the applicant’s written submissions states “The Ground 5 of my Submission, did not seem to be considered by this Honourable Court”. Ground 5 was addressed at pars [49]-[50] and [52]-[59].

26. Other matters raised in the affidavit have no apparent relevance to the orders sought in the Notice of Motion, or indeed, to the issues litigated on the previous occasion. By way of example only, the applicant makes assertions concerning correspondence from “the Officer of the Minister of Transport for NSW (previously RMS)”.

27. The supplementary submissions also focus on matters not material to the issues previously litigated, and not caught within the orders sought in the Notice of Motion. The submissions concentrate on, and make serious allegations about, the respondent’s legal representative in the Local Court proceedings.

28. Although it is true that, in the Amended Summons, the applicant had sought an order that this Court “considers using discretionary supervisory jurisdiction” in relation to the solicitor’s conduct (see Majak v Rose (No 3) at [28](11)), no ground of the Amended Summons adverted to or particularised any basis for such an order, nor, more importantly, any jurisdiction of the Court that would warrant or permit such an order.

29. There is nothing in either the applicant’s affidavit or her supplementary submissions that persuades us that any error attended the previous judgment or that the power conferred by UCPR 36.16 should be exercised to set aside the judgment.

30. The orders of the Court are:

1. Dismiss the Notice of Motion filed on 30 May 2017; and

2. The applicant to pay the third respondent’s costs of the Notice of Motion.

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Decision last updated: 28 September 2017