Pavelescu v Pisa - [2021] QCA 167

SUPREME COURT OF QUEENSLAND

CITATION:

Pavelescu v Pisa [2021] QCA 167

PARTIES:

In Appeal No 7426 of 2020:

MAGISTRATE DOOLEY
(first respondent/not a party to the application)
IOANA HORTENSIA PAVELESCU (PISA)
(second respondent/applicant)
v
LADISLAV PISA
(appellant/respondent)

In Appeal No 9109 of 2020:

IOANA HORTENSIA PAVELESCU (PISA)
(respondent/applicant)
v
LADISLAV PISA
(appellant/respondent)

FILE NO/S:

Appeal No 7426 of 2020
Appeal No 9109 of 2020
SC No 5974 of 2020
DC No 6 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Application for Dismissal for Want of Prosecution

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 10 June 2020 (Callaghan J)
District Court at Southport – Unreported, 24 July 2020 (Kent QC DCJ)

DELIVERED ON:

13 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Morrison JA

ORDERS:

1.   Appeal 7426 of 2020 is dismissed for want of prosecution.

2.   Appeal 9109 of 2020 is dismissed for want of prosecution.

3.   In each of appeal 7426 of 2020 and 9109 of 2020 the appellant pay the respondents’ costs on the indemnity basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – WANT OF PROSECUTION OR LACK OF PROGRESS – where the appellant filed two notices of appeal relating to decisions in the Supreme Court and District Courts – where the appellant filed a written outline of argument in one appeal and nothing further in either appeal – where no progress had been made on either appeal for approximately one year – whether the appeals should be dismissed for want of prosecution

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – POWER TO ORDER – where the appeals involved claims without basis – where the appeals advanced points in wilful disregard of known facts or established law – whether the appellant should pay the respondent’s costs on the indemnity basis

COUNSEL:

No appearances – the applicant’s and respondent’s submissions were heard on the papers

SOLICITORS:

No appearances – the applicant’s and respondent’s submissions were heard on the papers

MORRISON JA: The appellant filed two notices of appeal seeking to challenge different decisions. The first was an appeal from a decision by Justice Callaghan in the Supreme Court on 10 June 2020. The parties to that appeal (7426 of 2020) are Magistrate Dooley (first respondent) and Ms Pavelescu (second respondent).[1]
[1]I note that Pavelescu is her maiden name and her surname since marriage is “Pisa”. For ease of reference only I shall continue to refer to her as Ms Pavelescu.
The second appeal (9109 of 2020) seeks to challenge an order made by Judge Kent QC in the District Court on 24 July 2020.
In appeal 7426/20 the appellant filed an outline on 5 August 2020. Nothing has been done since on his part. Ms Pavelescu filed her outline of argument on 24 August 2020. The other respondent (Magistrate Dooley) abides the order of the court.
In appeal 9109/20 nothing has been done by the appellant since the notice of…

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.

Keep reading for free

Create a free CaseChat account to read Pavelescu v Pisa and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] QCA 167
Decision Date: 13 August 2021

CaseChat Overview and Summary

In the case of Pavelescu v Pisa, the appellant brought two appeals, one in the Supreme Court and one in the District Court, against decisions relating to domestic violence protection orders. The appellant filed a written outline of argument in one appeal but made no further progress for about a year. The respondent sought dismissal of the appeals for want of prosecution and an order for the appellant to pay costs on an indemnity basis. The court had to decide whether the appeals should be dismissed for lack of progress and whether the appellant should pay the respondent's costs on the indemnity basis.

The court found that the appellant had not complied with the Registrar's directions and had indicated that he did not intend to progress the appeals further. The court also found that the appeals were conducted without any reasonable prospect of success and were brought for an ulterior purpose, in a vindictive manner. The court found that the appellant had not taken the appeals seriously and had made no effort to progress them. The court found that the respondent was entitled to costs on the indemnity basis.

The court dismissed both appeals for want of prosecution and ordered the appellant to pay the respondent's costs on the indemnity basis. The court found that the appeals were frivolous and had no reasonable prospect of success. The court found that the appellant had acted in a vindictive manner and had brought the appeals for an ulterior purpose. The court found that the respondent was entitled to costs on the indemnity basis.

Orders

Orders of the court

1. Appeal 7426 of 2020 is dismissed for want of prosecution.

2. Appeal 9109 of 2020 is dismissed for want of prosecution.

3. In each of appeal 7426 of 2020 and 9109 of 2020 the appellant pay the respondents’ costs on the indemnity basis.

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

The allegations against the solicitor are mere assertions in an email. They are not sworn to, nor are they reflected in any ground of appeal. Though the appellant may not appreciate it, the way in which the registry is involved in giving him a fair hearing is by setting the steps under which the appeals are properly prepared and brought to a hearing in this Court. The appellant’s email of 1 December 2020 really seeks some form of a hearing well short of that, and without the appellant’s involvement, failing which the appellant asked again that the matters be withdrawn.Consideration On any view, there has been non-compliance with the Registrar’s directions and an unwillingness on the part of the appellant (for whatever reason) to progress either appeal. Further, he has openly stated that he does not intend to return to Australia. Of course, he does not need to be in Australia to progress the appeals, and he has sought that at least 7426/20 be heard on the papers. However, his announcement of intention was also accompanied by a statement of his intention to withdraw the appeals. In my view, the appellant has plainly indicated his intention with respect to the appeals, namely that he does not intend to progress them any further. In all the circumstances it seems to me that the only possible result is that the appeals be dismissed for want of prosecution. As to the question of costs, the position is more difficult. The applicant seeks her costs on the indemnity basis, contending that each appeal was conducted for an ulterior purpose, in a vindictive manner and without any reasonable prospect of success. Reliance in that regard is place upon the decision of this Court in Amos v Monsour Legal Costs Pty Ltd.[2][2][2008] 1 Qd R 304 at [16].Appeal 7426/20 – proceedings before Magistrate Dooley and Justice Callaghan The proceedings before Magistrate Dooley are the subject of 7426/20. The short background is that there were two occasions when Magistrate Dooley dealt with an application for a domestic violence protection order against the appellant, on each occasion not actually hearing that application but adjourning it. On the first occasion (3 April 2019) the adjournment was because the application had been brought ex parte and there was no evidence upon which the magistrate could act. The application was adjourned to 15 April 2019, when the appellant was represented by a lawyer. By that time a family report had been obtained and all parties considered that the matters the subject of real contention were matters that could only be dealt with in the Federal Circuit Court. For that reason, essentially by agreement, the application was adjourned for a longer period to let the Federal Circuit Court proceedings commence. At some point the appellant applied to Justice Callaghan for an order of statutory review of Magistrate Dooley’s decisions. Since there were no decisions, other than to adjourn the proceedings, not surprisingly the application was dismissed. In relation to the orders made by Justice Callaghan on that application, a review of the notice of appeal and outline suggests that it is only the costs order that is challenged.

CITATION:	Pavelescu v Pisa [2021] QCA 167
PARTIES:	In Appeal No 7426 of 2020: MAGISTRATE DOOLEY (first respondent/not a party to the application) IOANA HORTENSIA PAVELESCU (PISA) (second respondent/applicant) v LADISLAV PISA (appellant/respondent) In Appeal No 9109 of 2020: IOANA HORTENSIA PAVELESCU (PISA) (respondent/applicant) v LADISLAV PISA (appellant/respondent)
FILE NO/S:	Appeal No 7426 of 2020 Appeal No 9109 of 2020 SC No 5974 of 2020 DC No 6 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Application for Dismissal for Want of Prosecution
ORIGINATING COURT:	Supreme Court at Brisbane – Unreported, 10 June 2020 (Callaghan J) District Court at Southport – Unreported, 24 July 2020 (Kent QC DCJ)
DELIVERED ON:	13 August 2021
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Morrison JA
ORDERS:	1. Appeal 7426 of 2020 is dismissed for want of prosecution. 2. Appeal 9109 of 2020 is dismissed for want of prosecution. 3. In each of appeal 7426 of 2020 and 9109 of 2020 the appellant pay the respondents’ costs on the indemnity basis.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – WANT OF PROSECUTION OR LACK OF PROGRESS – where the appellant filed two notices of appeal relating to decisions in the Supreme Court and District Courts – where the appellant filed a written outline of argument in one appeal and nothing further in either appeal – where no progress had been made on either appeal for approximately one year – whether the appeals should be dismissed for want of prosecution PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – POWER TO ORDER – where the appeals involved claims without basis – where the appeals advanced points in wilful disregard of known facts or established law – whether the appellant should pay the respondent’s costs on the indemnity basis
COUNSEL:	No appearances – the applicant’s and respondent’s submissions were heard on the papers
SOLICITORS:	No appearances – the applicant’s and respondent’s submissions were heard on the papers