Re Cwalina (Filing of Writ and Statement of Claim) (No 2)

[2024] VSC 478

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MISCELLANEOUS LIST

S ECI 2024 03774

PIOTR MACIEJ CWALINA and ZOFIA BOZENA MAJAK	Proposed Plaintiffs
v
ALAN WESLEY ROSE, RUSSELL CRAIG BYRNES and ANDREW JAMES BARNDEN	Proposed Defendants

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	16 August 2024
CASE MAY BE CITED AS:	Re Cwalina (Filing of Writ and Statement of Claim) (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 478

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PRACTICE AND PROCEDURE – Whether proposed writ and statement of claim was improperly refused by a Deputy Prothonotary for filing – Where proposed proceeding would amount to a collateral attack on prior decisions – Where proposed statement of claim would be embarrassing in legal sense – Deputy Prothonotary correct to refuse to accept writ and statement of claim for filing – Re Cwalina (Filing of Writ and Statement of Claim) [2024] VSC 349 – Supreme Court (General Civil Procedure) Rules2015 (Vic) r 28A.04.

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APPEARANCES:	Counsel	Solicitors
For the Proposed Plaintiffs	N/A	N/A
For the Proposed Defendants	N/A	N/A

HIS HONOUR:

A.  Background

1. Piotr Maciej Cwalina and Zofia Bozena Majak, both self-represented, sought to commence a proceeding in this Court against Alan Wesley Rose, Russell Craig Byrnes, and Peter Davis.  On 21 June 2024, I directed the Prothonotary not to accept the proposed writ for filing because it would be an abuse of process.[1]  I concluded that the proposed proceeding was in substance a collateral attack on prior decisions made in this Court and in the Family Court and was also embarrassing in the legal sense.[2] 

   [1]Re Cwalina (Filing of Writ and Statement of Claim) [2024] VSC 349.

   [2]Ibid [18], [21].

1. Mr Cwalina and Ms Majak have now sought again to commence a proceeding, by way of attempting to file a new writ dated 22 July 2024 against Mr Rose and Mr Byrnes, but on this occasion also against Mr Andrew Barnden (but not Mr Davis). Mr Byrnes, as set out in my earlier reasons, is the solicitor who acted for Mr Rose including in the litigation. Mr Davis is a solicitor who was engaged by Mr Cwalina and Mr Rose in their development of the properties. Mr Barnden is, it is alleged and I have no reason to doubt, Ms Majak’s trustee in bankruptcy. On 23 July 2024, the Deputy Prothonotary refused to accept Mr Cwalina and Ms Majak’s new writ for filing. Mr Cwalina and Ms Majak have asked this Court to review the Deputy Prothonotary’s refusal pursuant to r 28A.04(5)(b) of the Supreme Court (General Civil Procedure) Rules 2015.

1. I have set out details of the previous litigation involving Mr Cwalina and Ms Majak in my earlier reasons.[3]  In summary:

   [3]Ibid.

(a)   Mr Cwalina and Mr Rose owned and developed properties at 1 Geofrey Street and 17 Helen Street in Frankston South.  Mr Rose also owned other properties;

(b)  Ms Majak had first been married to Mr Cwalina and had then been in a domestic relationship with Mr Rose that had come to an end.  She commenced a proceeding in this Court against Mr Cwalina and Mr Rose in which she sought to establish that she had equitable interests in the 1 Geofrey Street and 17 Helen Street properties;

(c)   In that same proceeding, Mr Cwalina and Mr Rose made allegations against each other in relation to the development in Frankston South, the agreement or agreements between them, and the interests that they each had in those properties;

(d)  Ms Majak and Mr Rose also had proceedings on foot in the Family Court for a property settlement that included claims by Ms Majak to equitable interests in other properties owned by Mr Cwalina as well as a claim for a division of property in accordance with the Family Law Act 1975 (Cth);[4]

[4]The proceedings in the Family Court were dealt with by way of pseudonyms; see Re Cwalina (Filing of Writ and Statement of Claim) [2024] VSC 349 at [6] onwards.

(e)   Ms Majak settled her claim against Mr Cwalina, so the proceeding in this Court thereafter concerned only the disputes between Ms Majak and Mr Rose and between Mr Rose and Mr Cwalina;

(f)    The Supreme Court transferred Ms Majak’s claims to have equitable interests in the properties in Mr Rose’s name to the Family Court, to be heard with the other claims she made against him in their property settlement.  Mr Cwalina gave evidence in that proceeding;

(g)  The Family Court concluded that Ms Majak’s evidence and Mr Cwalina’s evidence was unreliable, Mr Rose’s evidence was a credible witness, and that there was no basis for any of Ms Majak’s claims that she had equitable interests in the properties owned by Mr Rose.  Ms Majak appealed, but the appeal was dismissed; and

(h)  Tsalamandris J of this Court then determined the dispute between Mr Rose and Mr Cwalina. The allegations made included allegations that Mr Cwalina had not complied with the terms of a settlement agreement, which her Honour found Mr Cwalina and Mr Rose had reached in October 2017.  Mr Cwalina, Mr Rose and Ms Majak each gave evidence.  Tsalamandris J accepted, in broad terms, Mr Rose’s evidence and submissions and rejected Mr Cwalina’s evidence and submissions, and made orders including an injunction and orders for the sale of the properties and division of the proceeds.

B.  The proposed writ and statement of claim

1. According to the prayer for relief in the proposed statement of claim, Mr Cwalina and Ms Majak seek the following orders:

(a)   That the orders of Tsalamandris J (or some of them) be ‘declared invalid’;

(b)  That Mr Rose and Mr Byrnes be restrained from executing any transfer instrument in respect of the 17 Helen Street, Frankston property and that Mr Cwalina be given exclusive possession of that property; and

(c)   Damages for what are alleged to have been breaches of duty to the Court, fraud upon the Court, perverting the course of justice, unconscionable conduct, ‘evoking coercive powers of the court by misleading and deceptive representations’, and the obtaining of the injunction and order for sale.

1. The statement of claim does not clearly indicate the connection between the alleged misconduct and the proposed plaintiffs’ loss, but to the extent that such a connection is suggested, it seems that the proposed plaintiffs want to present a case that the misconduct caused them loss because the misconduct caused the Court to make the orders it did.

1. The proposed plaintiffs also wish to allege, as I apprehend it, that Mr Barnden wrongly discontinued an appeal that Ms Majak had brought against an order dismissing her application to be joined in the claims between Mr Cwalina and Mr Rose.  The ‘wrong that was done’ to Ms Majak by this action was, it seems to be alleged, that the Family Court rejected her claim and ordered costs against her and also, perhaps, that it denied her the opportunity to establish that Mr Rose and Mr Byrnes were ‘legally responsible’ for her bankruptcy, prevented her from counterclaiming against Mr Rose, and has prevented her from showing that the judgments were fraudulently obtained. 

1. Accordingly, it is apparent that by this proceeding the proposed plaintiffs are seeking to amount a collateral attack on the findings made by Tsalamandris J and the Family Court. That would be an abuse of process for the reasons set out in my earlier reasons,[5] and also set out by Beach JA in Soo v Victorian Legal Aid.[6]  This is sufficient reason to endorse the decision of the Deputy Prothonotary to refuse to accept the writ and statement of claim for filing.

   [5]Re Cwalina (Filing of Writ and Statement of Claim) [2024] VSC 349, [19].

   [6][2023] VSCA 330 at [10]-[11].

1. The uncertainty with which paras 5 and 6 above are expressed results from the unsatisfactory way in which the statement of claim has been expressed.  The proposed statement of claim fails to contain, in a summary form, a statement of all the material facts upon which the parties rely[7] in a manner that defines and confines the facts in issue, and that permits the reader to ascertain the cause or causes of action being brought.  It also makes numerous allegations of misconduct in respect of which it seems no relief is sought.  The proposed pleading is embarrassing in the legal sense.  It could not form the basis of properly-confined litigation.  For these reasons too, the proposed proceeding would be an abuse of process.

   [7]Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 13.02(1)(a).

1. Accordingly, the Deputy Prothonotary was correct to refuse the proposed writ and statement of claim dated 22 July 2024 for filing, and no order ought be made setting that original decision aside. In the circumstances, it is not necessary to consider whether Ms Majak would be prevented from commencing a proceeding for damages by reason of Div 4 of Part IV of the Bankruptcy Act 1966 (Cth).

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