Byrnes v Majak [2020] NSWSC 906 | Case summary

Byrnes v Majak [2020] NSWSC 906 | Case summary | Zoe

ex tempore Judgment

HIS HONOUR: Before the Court is a motion brought by the first and third defendants by notice filed 30 April 2020.
The first and third defendants, being respectively Russell Craig Byrnes and Matthew Byrnes, seek summary dismissal, pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (hereinafter "UCPR") r 13.4, of the plaintiff's proceedings against them, which were commenced initially and are now the subject of an Amended Statement of Claim, filed 23 March 2020.
Alternatively, they seek that the Amended Statement of Claim be struck out pursuant to UCPR r 14.28.
The applicants on the motion rely on the Affidavit of Anna Williams, solicitor for the applicants, affirmed 21 May 2020. They have also tendered the respondents' Amended Statement of Claim filed 26 March 2020 in District Court proceedings together with a copy of the defence in those proceedings of Mr Rose and Ms Rebeiro filed 6 May 2020.
The respondent in response to that evidence relies on her Affidavit of 10 June 2020 and, to the extent necessary, the Affidavit of 11 June 2020 filed in the District Court proceedings.
The proceedings have an unfortunate history. Unfortunate in the sense of the intertwining of various proceedings between at least the plaintiff and the second defendant.
The respondent to the application, Ms Majak and her ex-husband, Mr Rose, who is the second defendant, have been involved in various proceedings, to which I have been referred, in different courts including the Local Court, the District Court, the Family Court and the Court of Appeal, in relation to the breakdown of their relationship and/or the consequences of that breakdown.
In part, those proceedings concerned the application for and the making of an Apprehended Domestic Violence Order and an Apprehended Personal Violence Order against the plaintiff in the proceedings, being the respondent to the motion.
The applicants on this motion, being the first and third defendants in the proceedings, acted for the second defendant, Mr Rose, in the Family Court proceedings and seemingly, although it is not absolutely clear, in the proceedings in some of the other matters that have come before the various courts.
The first Apprehended Domestic Violence Order was taken out in 2014. Paragraph 10 of the applicants' written submissions, about which there is no contest, is in the following terms and it sets out some of the litigation: The litigation between the plaintiff and Mr Rose included two sets of proceedings in the Local Court in which Mr Rose sought and obtained apprehended domestic violence orders against the plaintiff: In proceedings 2014/44950: a. an interim ADVO made on 18 February 2014; b. a final ADVO made for 6 months by consent on 12 June 2014; c. ADVO extended, ultimately leading to the AVO being extended on 25 June 2015 for a further six months (ie, expiring on 25 December 2015). In proceedings 2016/34166: a. a second final ADVO made for three years from 24 October 2016 (ie, expiring 24 October 2019).
The plaintiff/respondent asserts, as I understand it, that the first and third defendants, being the applicants, undertook or performed a number of acts.
First, they accepted the instructions of the second defendant in the proceedings and acted on those instructions to the detriment of Ms Majak.
The second defendant would have been the equivalent of the complainant in the Apprehended Violence Orders issues.
Secondly, they adduced evidence in the Family Court proceedings, which evidence went in part to the credit of Ms Majak.
Thirdly, they adduced evidence in the Local Court proceedings.
Fourthly, they undertook correspondence in relation to the Apprehended Violence Orders that they were seeking or had obtained and it is said that the contents of that correspondence was adduced in the proceedings in the Family Court and/or the Local Court and accepted as fact when it ought not to have been.
The respondent brought an unsuccessful appeal against the 2014 ADVO proceedings. That appeal was taken in the District Court. That appeal was the subject of an unsuccessful Judicial Review Application to the Court of Appeal, brought by the respondent, in respect of the District Court determination. That judicial review application was also dismissed.
Lastly, of relevance, the respondent sought a revocation of the 2016 apprehended personal violence order, to which I have referred. That revocation application was also dismissed in the Local Court.
The applicants on the motion before this Court did not act for the second defendant in the Local Court Apprehended Violence Order proceedings. However, the applicants did act in the Court of Appeal. Another solicitor, Mr Riviere, acted for the second defendant in relation to the 2016 Local Court proceedings.
The respondent is self-represented and I have taken that into account to her credit in the sense that I have looked more carefully at the causes of action that may be available to her in relation to the matters that she alleges in the Amended Statement of Claim or indeed the original Statement of Claim.
These proceedings were originally commenced on 20 December 2019.
There was correspondence between the applicants' solicitor on the motion and the respondent, and the respondent agreed to re-plead and execute consent orders to the effect that the original Statement of Claim should be struck out with liberty to re-plead.
I do not say that as any criticism of the respondent. On the contrary, it shows reasonable conduct and parties are encouraged to agree to procedural issues such as those to which I have referred.
In short, the Amended Statement of Claim alleges that the second defendant, assisted by the applicants, used the Apprehended Violence Order process, in circumstances where they were aware the second defendant had no basis for obtaining an Apprehended Violence Order, to obtain an advantage in the Family Court proceedings.
District Court proceedings have also been brought against Mr Riviere, the second defendant, and the second defendant's current partner, Ms Rebeiro, making similar allegations about the use of the Apprehended Violence Order process amounting to a collateral abuse of process.
The applicant's on the motion have set out in Schedule A to their submissions a summary in relatively neutral terms, for which I am grateful, of all of the proceedings and judgments that have been before the Courts relating to, directly or indirectly, the matters that are alleged in these proceedings.
There can be no doubt that the Amended Statement of Claim, filed as a result of the process to which I have referred, does not clearly or adequately set out the causes of action under which it is said that these proceedings should continue. It is appropriate to refer briefly to the Amended Statement of Claim.
The first prayer for relief seeks a declaration that neither of the "protected persons" or the second and third defendants have any genuine basis to believe that the plaintiff caused a risk of harm or injury to the protected persons or that there were any proper facts that justified the filing of the apprehended violence order.
On its face, that declaration seeks a declaration of right but, in effect, it seeks judicial review of the Local Court apprehended Violence Order proceedings, the District Court appeal proceedings and the Court of Appeal Judicial Review proceedings, because the plaintiff/respondent seeks to impugn the judicial determination of the Apprehended Violence Orders.
The second declaration seeks a declaration that the Apprehended Violence Order was an abuse of process. I will come back to that proposition.
The third declaration is a declaration that: "By consequence of their conduct and involvement in relation to the AVO the Defendants [which I will confine for present purposes to the first and third defendants] utilised the AVO as an instrument of oppression against the plaintiff, whereby she was greatly harmed and injured"
And, fourthly, the respondent claims damages. There are also claims for interest, costs and such other such pleaded orders. The pleadings then set out in effect what are alleged to be the facts upon which the applicant relies.
In paragraph [7], the applicant refers to the first and third defendants as Byrnes and Byrnes Junior, and says in relation to them, at (i): "Byrnes assumed responsibility (on behalf of Rose) for acting as his solicitor in carriage of certain Family Court proceedings [being the proceedings to which I have already referred]" At (ii), the plaintiff alleges that: "Byrnes Junior acted as Byrnes employed solicitor, and who at all material times acted as his agent and in accordance with Byrne's [sic] instructions, assisting Byrnes in various ways and including by the sending of email correspondence to the plaintiff (and by threatening to have prosecution action brought against her concerning the AVO)."
Sub-paragraph (iii) deals with Mr Riviere and sub-para (iv) essentially deals with Mr Rebeiro and Mr Rose.
In paragraph [8], the plaintiff alleges, for the reasons disclosed in the District Court proceedings, that the Apprehended Violence Order itself and its filing "was a (collateral) abuse of process" filed on behalf of Mr Rose for the following improper and impermissible purposes: 1. Subjecting the Plaintiff to the conditions of the AVO, although it was completely unnecessary that she be made subject of it; 2. Subjecting the Plaintiff to Court process that in all the circumstances was unwarranted and unnecessary; 3. Employing it as an instrument of oppression and for the purposes of: 1. ensuring that the plaintiff remained subject to it, when same was not required and was not necessary; 2. ensuring that the plaintiff remained subject of Court process in which it was otherwise intended by the Plaintiff to have the AVO annulled or to have the orders made concerning it vacated; (and including by way of subsequent Court order); and 3. assisting Rose to obtain and to maintain Court orders against the Plaintiff, to which Rose was not otherwise entitled. 1. Obtain an advantage in the Family Court proceedings… 2. thereby acted for the purpose of greatly harming and injuring the Plaintiff.
In the course of the exchange with the plaintiff/respondent to the proceedings, I sought from the plaintiff an understanding of that which she relies upon in terms of the conduct of the first and third defendants. I have outlined the understanding I have from that which was told to me by the plaintiff.
The respondent submits, in her written submissions, that the applicants relied upon various inapposite authorities in their written submissions.
Secondly, in her submissions, the respondent complains about the applicants insisting that the respondent communicate through them rather than directly to their client, which the respondent says is a collateral abuse of process in unnecessarily involving lawyers.
Thirdly, the respondent complains about the applicants acting for the second defendant in bankruptcy proceedings against the respondent, which resulted in garnishee orders being imposed on the respondent, in order to recover sums owing under costs orders.
The respondent asserts that the intention of the applicants in so doing was to hinder the respondent in her Family Court proceedings and that it was a tactic to cause her mental anguish.
The respondent submits that the applicants knew that the respondent was not insolvent and yet assisted the second defendant in issuing a bankruptcy notice.
Fourthly, the applicant submits that actions of the second defendant, who is not an applicant in these proceedings, have caused certain orders of the Family Court to become unenforceable and has said that the applicants were aware of this.
It is also asserted by the respondent that this application for summary dismissal is another abuse of court process.
Sixthly, it is asserted that the false legal advice of the third defendant improperly provided the second defendant with a cause of action in the Local Court to seek apprehended violence orders.
Lastly, the respondent seeks orders for these proceedings to be consolidated with the District Court proceedings, referred to above.
I hasten to add that such an application was foreshadowed in the course of the oral submissions by the applicant in these proceedings.
Let me deal with a number of the matters. The principles on summary dismissal are well known and trite. In Fawcett v Cannon [2007] NSWSC 1267, I set out those principles commencing at [7]. I do not reiterate that which was there said by the Court.
I also referred, in the course of it, to the judgment of the High Court in Batistatos v The Road Transport Authority NSW (2006) 226 CLR 256; [2006] HCA 27. Again, I do not repeat that.
In Fawcett v Cannon at [9], I referred to my earlier judgment in Shalhoub Holdings Pty Limited v Commonwealth Bank of Australia [2006] NSWSC 607. I do not repeat what I there said, which was a large quote from Shalhoub from [28] to [36] of the judgment in Shalhoub.
I also referred, as did the applicants, to the statements of the High Court in Cox v Journeaux (1935) 52 CLR 713; [1935] HCA 48, and the statements therein made, I don't reiterate or rehearse those.
It is sufficient to recite for present purposes that which is said by Barwick CJ in General Steel Industries v Commissioner for Railways New South Wales (1964) 112 CLR 125; [1964] HCA 69 at 129: "It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'.
At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or 'so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument'; 'so to speak apparent at a glance'."
Further at 129-130, Barwick CJ cited with approval the earlier comment of Dixon J (as his Honour then was) in Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1 to the effect that: "the fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process." (emphasis added)
Those are the principles to which I adhere and which I apply in these proceedings.
I, therefore, need to look at the cause of action as it has been pleaded and need to take the plaintiff's case at its highest in dealing with the application under r 13.4. I take that approach; that is, I assume for present purposes that the case pleaded is taken at its highest and the applicants must satisfy the Court of a very clear case that there is no arguable matter that could be taken against them.
Let me deal with possible causes of action notwithstanding that they are not pleaded. I will deal with all of them globally and I will deal with it in a number of ways.
Firstly, to the extent that the Court is being asked by some form of judicial review to impugn extant judgments of the Court that have since expired, that is, in relation to the apprehended violence orders, which were the subject of Judicial Review proceedings in the Court of Appeal, which upheld the making of the apprehended violence orders, it is difficult, if not impossible, for the Court to come to the view that it should make a declaration that undermines the basis on which the Court otherwise came to conclusions which have not been disturbed.
The causes of action that could be taken are, seemingly, and I am casting my net very widely, in negligence, perhaps Wilkinson v Downton tort if it exists in Australia, malicious prosecution and collateral abuse of process.
In relation to negligence, it is trite that the solicitors for one side do not owe a duty of care to the party on the other side. They may owe duties to the court and they certainly owe duties to their own clients, but they do not owe a duty of care, a breach of which would sound in negligence, to the party on the other side of any litigation. So there is not, in my view, on the material before me, even if it were pleaded, an arguable case on negligence.
Over and above that, and this applies not only to negligence but other causes of action, there is the issue of damages. As I understand the damage that is pleaded and which was explained by the plaintiff/respondent in the course of the oral submissions before me today, it is damage that arises from the consequences of the making of the Apprehended Violence Orders. The Apprehended Violence Orders were made by orders of the court, which orders have not been quashed. Thus, in my view, it is, in those circumstances, not arguable that the effect of a court order can be categorised as damage.
In Hunter Area Health Service v Presland (2005) 63 NSWLR 22; [2005] NSWCA 33 at [86], Spigelman CJ said: "There has always been a normative dimension to causation. The Court asks 'Should a person be held legally responsible for the loss or damage?'"
It is difficult to answer that question in a way that would bring home to solicitors acting on the instructions of their client the damage caused by a court order that was made in judicial proceedings. It would seem to me impossible for the plaintiff in these proceedings, that is the respondent to the motion, to obtain damage, being the actual consequence of an order properly made. Even in unlawful arrest proceedings or wrongful imprisonment proceedings, the wrongful imprisonment damages apply only up until the time at which an order is made that would allow the imprisonment or the detention to occur. It would seem to me that the same principle should be applied in the determination of damages for negligence. I rely upon Presland in that respect.
The second cause of action is the cause of action in Wilkinson v Downton, with which I dealt in the judgment in Clavel v Savage [2013] NSWSC 775. There is some doubt as to whether the tort in Wilkinson v Downton actually applies in Australia. There is some comment, particularly by the Court of Appeal in Victoria, to the effect that it does not and some by the Court of Appeal in New South Wales that the issue has not been finally determined.
Assuming for the present process that it was a tort that was available, and certainly it is a tort that is arguably available, it would be necessary for the plaintiff in these proceedings to show the following elements. Firstly, a deliberate act, which I will call the conduct, by the putative tortfeasor; namely, the first and third defendants. Secondly, an intention, including reckless indifference, to cause physical or psychiatric harm by the conduct. Thirdly, the occasioning of harm, including psychiatric injury but not mere distress, as a result of the conduct. Fourthly, the harm being caused to a person to whom harm is intended or a person in the immediate vicinity to whose harm the perpetrator is recklessly indifferent. Fifthly, circumstances that disclose the conduct was reasonably likely to cause harm of the kind referred to in a normal person. And, sixthly, that the putative tortfeasor, here the first and third defendants, had engaged in the conduct without justification or lawful excuse. If that were the claim, which it is not, or it has not been pleaded, it would be impossible, in circumstances where one is talking about a principal solicitor and an employed solicitor, to say there was no justification or lawful excuse to take proceedings on the basis of instructions received from their client.
The second aspect, it seems to me, is malicious prosecution, which generally applies to criminal proceedings; although, on one view, it may apply to Apprehended Violence Orders, either personal or domestic. If one looked at Sappideen and Vines, Fleming's Law of Torts (10th ed, 2011, Thomson Reuters), the elements are described as the institution of criminal proceedings by the defendant; the termination of proceedings in favour of the plaintiff, if from their nature they were capable of so terminating; absence of reasonable and probable cause; malice or a primary purpose other than that of carrying the law into effect; and damage suffered by the plaintiff.
I have already referred to damage when dealing with negligence, so it fails on that aspect.
There is no pleading as to malice of the kind that would be necessary for the institution of malicious prosecution proceedings.
There is no absence of reasonable and probable cause.
There is no termination of the proceedings in favour of the plaintiff.
If Apprehended Violence Order proceedings be criminal proceedings, there is at least that element obtained. In A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [1], the High Court of Australia said: "For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish: (1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff." That element is clearly satisfied on the pleadings. Sub-para (2) reads: "(2) that the proceedings terminated in favour of the plaintiff." That element is clearly to the opposite effect of that which is pleaded. Sub-para (3) reads: "(3) that the defendant, in initiating or maintaining the proceedings acted maliciously."
As the term "maliciously" is understood, that term is not disclosed as against the first and third defendants as it is said that the first and third defendants acted upon the instructions of their client. Sub-para (4) reads: "(4) that the defendant acted without reasonable and probable cause."
For the same reason, that aspect is not pleaded, nor is it possible to be successful.
Lastly, at [118] of the judgment of the High Court in A v State of New South Wales, the Court makes clear: "Where a prosecutor… [assuming for present purposes that the first and third defendants in these proceedings who were acting as solicitors for the second defendant were prosecutors, a conclusion about which I have significant doubt]…has no personal knowledge of the facts underlying the charge, but acts on information received, the issue is not whether the plaintiff proves that the state of mind of the prosecutor fell short of a positive persuasion of guilt. As explained earlier in these reasons, it is whether the plaintiff proves that the prosecutor did not honestly form the view that there was a proper case for prosecution, or proves that the prosecutor formed that view on an insufficient basis."
Lastly, the only other cause of action to which it seems it is necessary to refer is the cause of action in collateral abuse of process. The elements of a collateral abuse of process were set out by the High Court in Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34. The High Court summarised collateral abuse as involving the following elements. The first element requires that the party who has instituted the impugned proceedings having done so for a purpose or to effect an object beyond that which the legal process offers. In relation to this case, that certainly is pleaded in relation to the second defendant. It is not, it seems to me, in the sense that it is used in this description by the High Court, pleaded of the first and third defendants because their purpose was to effect the instructions of their client and to protect and/or preserve his rights and his liberty. The fact, if it be the fact, that successfully achieving the legal effect of the application has an indirect consequence, does not give rise to an improper purpose.
The second element in collateral abuse of process is that the purpose of the party instituting the impugned proceedings is of crucial importance. Again, I refer back to what I have already said. I make the point in that regard that it would be difficult to say of the first and third defendants in these proceedings that they were "the party who has instituted the impugned proceedings".
Thirdly, the abusive purpose of the impugned proceedings must be the predominant or effective purpose. Lastly, the onus of proof on a plaintiff in order to succeed on a claim of collateral abuse is a heavy one.
They are the only causes of action that I can imagine. I am using that term in the sense that I have looked, at some length, before today, and today, at the possible causes of action that could be inferred from that which is pleaded by the plaintiff in these proceedings.
In my view, none of the causes of action to which I have referred arise. There is no cause of action that is expressed in the Amended Statement of Claim, at least as against the first and third defendants. It seems to me that it is a very clear case on the current Amended Statement of Claim and, even if I were to assume a re-pleading of it, on any further amended Statement of Claim, the plaintiff has no case against the first and third defendants.
In those circumstances, it seems to me orders should be made striking out the proceedings against the first and third defendants.
The Court makes the following orders: 1. The proceedings be dismissed as against the first and third defendants. 2. The Respondent pay costs of the Applicants, of and incidental to the proceedings, on the ordinary basis. 3. Costs are payable forthwith.

Byrnes v Majak

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