Majak v Rose (No 8) - [2017] NSWCA 279

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Majak v Rose (No 8) [2017] NSWCA 279
Hearing dates: 27 October 2017
Date of orders: 27 October 2017
Decision date: 27 October 2017
Before: Basten JA at [1];
Macfarlan JA at [27];
Sackville AJA at [28]
Decision:
(1) Dismiss the applicant’s amended summons filed on 6 September 2017.
(2) Order that the applicant pay the costs of the first respondent, Alan Wesley Rose, of the proceedings in this Court.
Catchwords:
APPEAL AND REVIEW – judicial review – supervisory jurisdiction – Supreme Court Act 1970 (NSW), s 69 – application for review of District Court decision dismissing appeal from Local Court ruling – apprehended personal violence order made against applicant – whether District Court decision involved jurisdictional error
COSTS – application for review of District Court order awarding costs to respondent – whether decision involved jurisdictional error
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss, 7, 16, 84
District Court Act 1973 (NSW), s 176
Cases Cited: Charara v The Queen [2006] NSWCCA 244
Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115
Majak v Rose (No 3) [2017] NSWCA 104
Category: Principal judgment
Parties: Zofia Majak (Applicant)
Alan Wesley Rose (Respondent)
Representation:
Counsel:
Applicant self-represented
Mr L P Robberds QC (Respondent)
Solicitors:
Applicant self-represented
Russell C Byrnes (Respondent)

File Number(s): 2017/235558
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

5 July 2017; 4 August 2017

Before:

Buscombe DCJ

File Number(s):

2016/34166

Judgment

BASTEN JA: The applicant, Zofia Majak, sought review in the supervisory jurisdiction of this Court with respect to orders made by Judge Buscombe in the District Court at Penrith on 5 July 2017, rejecting her appeal to that Court.
The proceeding in the District Court was an appeal by the applicant from an apprehended personal violence order made against her in the Local Court at Gosford on 24 October 2016. The appeal to the District Court was brought pursuant to s 84 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (“Domestic Violence Act”). The Crimes (Appeal and Review) Act 2001 (NSW) (“Appeal and Review Act”) applies to such an appeal. [1] Such an appeal therefore falls within the criminal jurisdiction of the District Court, from which no right of appeal exists and which is subject to the privative clause contained in s 176 of the District Court Act 1973 (NSW). The result is that this Court may intervene only when satisfied that there has been jurisdictional error on the part of the District Court. [2]
1. Domestic Violence Act, s 84(3), (4).
2. Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [8]-[10].
In the event that error were established, the applicant sought an order setting aside the orders made in the Local Court at Gosford. That relief is not available in the supervisory jurisdiction; unless the Local…

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 8)

Details

AGLC: Majak v Rose (No 8) [2017] NSWCA 279
Case: [2017] NSWCA 279
Decision Date: 27 October 2017

CaseChat Overview and Summary

The applicant, Majak, sought judicial review of a decision of the District Court of New South Wales, which had dismissed an appeal from a ruling of the Local Court. The Local Court had made an apprehended personal violence order against the applicant. The applicant also sought review of the District Court's order awarding costs to the respondent, Alan Wesley Rose. The proceedings were before the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the District Court's decision to dismiss the applicant's appeal from the Local Court, and its subsequent order for costs, involved a jurisdictional error. This required the Court to consider the scope of the supervisory jurisdiction of the Supreme Court, as conferred by section 69 of the *Supreme Court Act 1970* (NSW), in relation to decisions made by the District Court on appeal from the Local Court.

The Court of Appeal found that the District Court's decision did not involve jurisdictional error. The Court reasoned that the District Court had exercised its appellate jurisdiction correctly and had not made any error that would vitiate its jurisdiction. Consequently, the Court of Appeal dismissed the applicant's amended summons. The Court also ordered that the applicant pay the costs of the first respondent in the proceedings before the Court of Appeal.

Orders

Orders of the court

(1) Dismiss the applicant’s amended summons filed on 6 September 2017.

(2) Order that the applicant pay the costs of the first respondent, Alan Wesley Rose, of the proceedings in this Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Majak v Rose (No 8) [2017] NSWCA 279
Hearing dates:	27 October 2017
Date of orders:	27 October 2017
Decision date:	27 October 2017
Before:	Basten JA at [1]; Macfarlan JA at [27]; Sackville AJA at [28]
Decision:	(1) Dismiss the applicant’s amended summons filed on 6 September 2017. (2) Order that the applicant pay the costs of the first respondent, Alan Wesley Rose, of the proceedings in this Court.
Catchwords:	APPEAL AND REVIEW – judicial review – supervisory jurisdiction – Supreme Court Act 1970 (NSW), s 69 – application for review of District Court decision dismissing appeal from Local Court ruling – apprehended personal violence order made against applicant – whether District Court decision involved jurisdictional error COSTS – application for review of District Court order awarding costs to respondent – whether decision involved jurisdictional error
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss, 7, 16, 84 District Court Act 1973 (NSW), s 176
Cases Cited:	Charara v The Queen [2006] NSWCCA 244 Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 Majak v Rose (No 3) [2017] NSWCA 104
Category:	Principal judgment
Parties:	Zofia Majak (Applicant) Alan Wesley Rose (Respondent)
Representation:	Counsel: Applicant self-represented Mr L P Robberds QC (Respondent) Solicitors: Applicant self-represented Russell C Byrnes (Respondent)
File Number(s):	2017/235558
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 5 July 2017; 4 August 2017 Before: Buscombe DCJ File Number(s): 2016/34166