Majak v Rose

Majak v Rose - [2016] NSWCA 278 - NSWCA 2016 case summary — Zoe

Judgment

The applicant (Ms Majak) seeks relief in this Court's supervisory jurisdiction in respect of six decisions said to have been made in the District Court or the Local Court.
By her notice of motion filed 5 September 2016 Ms Majak seeks the following interlocutory orders, each of which is opposed: 1 Order to Stay a Writ of Levy of Property, Court Case No: 2016/00248593 for the amount of $7885.99. 2 Order to stay Garnishee Orders issued in relation to cost orders that are subject of this review. 3 Order to stay enforcement of cost orders granted by Local Court and District Court in relation to proceedings 2014/00044950-001. 4 Order to Stay APVO proceedings 2016/00034166 listed in the Local Court in Gosford for 6 October until the review under supervisory jurisdiction is completed. 5 In alternative, an order to determine the Notice of Motion seeking leave to commence private prosecution against Alan Rose in relation to perjury before determination of the APVO Application is made.
It is necessary to say something about the circumstances in which those six decisions were made and to describe them in more detail, for the purpose of addressing the interlocutory relief sought.
The applicant and respondent were formerly in a de facto relationship and jointly owned a development property in Bangalow St, Ettalong. That relationship broke down in 2013. In late January 2014 Ms Majak applied for an apprehended domestic violence order (ADVO) against Mr Rose. On 18 February 2014 on Mr Rose's application an interim ADVO was made ex parte against Ms Majak. On the final hearing of that application on 12 June 2014 Ms Majak consented to an ADVO order for a period of six months. Ms Majak maintains that her consent to that order was given in circumstances where she was unaware that Mr Rose had earlier complained to the police of a breach of the interim order. Subsequently proceedings brought against Ms Majak for a contravention of that interim order were dismissed.
In July 2014 Ms Majak applied to revoke or set aside the ADVO made on 12 June 2014. On 23 October 2014, on the respondent's application, the Local Court at Gosford (Magistrate Lee) added order 13 to the final ADVO, presumably in exercise of the power conferred by s 73 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (the Act), which allows for the variation of final orders (decision 6 as described in Ms Majak's summons in this Court).
In November 2014 the respondent applied to have that ADVO extended for a further six months. After being adjourned on at least two occasions, that application was granted by the Local Court (Magistrate Lee) on 25 June 2015 with the result that the order continued for a period of six months from that date (decision 5). Ms Majak appealed to the District Court from the making of that order. That appeal was brought under s 84(2)(c) of the Act. It was heard and determined by Mahony SC DCJ in a judgment delivered on 25 November 2015. His Honour ordered that the appeal be dismissed and that Ms Majak pay the respondent's costs (decision 3).
On 10 December 2015 the Local Court (Magistrate Lee) ordered Ms Majak to pay the respondent's costs of the proceedings for the application to extend the ADVO and assessed those costs at $20,206.56 (decision 4). Ms Majak appealed against that costs order to the District Court under s 84(2)(b) of the Act. That appeal was dismissed by Bozic DCJ on 7 June 2016 (decision 2). That decision included an order that Ms Majak pay Mr Rose's costs of that appeal assessed at $5,060.
In February 2016 Mr Rose obtained an interim apprehended personal violence order (APVO) against the applicant. The hearing of the proceedings for a final APVO commenced on 22 June and continued on 4 August 2016 in the Local Court at Gosford (Magistrate Williams). On the latter date the proceedings were adjourned for further hearing on 6 October 2016.
On 1 August 2016 Ms Majak filed a notice of motion in the Local Court for leave under s 338(1) of the Crimes Act 1900 (NSW) to commence a private prosecution alleging perjury by Mr Rose in respect of evidence given before Magistrate Williams on 22 June 2016. On 4 August 2016 Magistrate Williams declined to deal with that motion until he had first determined Mr Rose's application for a final APVO (decision 1).
On 1 February 2016 the Local Court made a garnishee order requiring Ms Majak's employer, to pay amounts from her wage or salary to the respondent until such time as the Local Court judgment of 10 December 2015 was paid.
At some stage on or before 19 August 2016 the Local Court also issued a writ for levy of property for enforcement against Ms Majak in respect of an unpaid judgment debt of $7,885.99 owing to the respondent. The evidence does not indicate clearly the proceedings in which that liability was incurred. The summons suggests that the liability arises under a costs order made on 28 January 2016 in relation to the ADVO proceedings before Magistrate Lee.
The interlocutory orders which the applicant seeks are set out above. They are conveniently dealt with in two parts.

[3]

Proposed orders 1, 2 and 3

Orders 1, 2, and 3 seek to stay the enforcement of costs orders. The costs orders referred to are those made on 10 December 2015 in the Local Court and on 7 June 2016 in the District Court. As I have noted above it is not clear in respect of what costs order the writ of levy of property was issued. However what is tolerably clear is that the relevant costs order is one which is the subject of the applicant's claim for judicial review. The only relevant costs decisions identified in the summons are decision 4 and decision 2.
The grounds identified in the summons which in their terms are capable of applying to the costs orders sought to be reviewed are grounds 7, 8 and 9: (7) The decisions makers failed to be satisfied that the statutory criteria had been established when granting costs on indemnity basis to be paid to Alan Rose. (8) The District Court did not conduct reviews by way of rehearing and instead confirmed the original decisions on the basis set out solely in the reasons of the Learned Magistrate when the District Court was obliged to be satisfied that the orders were based on the statutory criteria and being satisfied that the orders were not based on irrelevant considerations. (9) That the appeals in the District Court were affected by procedural unfairness, because the Judges did not read the submissions made by the Applicant and the appeals were determined based on incomplete files, where the exhibits submitted during the proceedings in the Local Court were missing.
In support of the relief sought by her summons Ms Majak has also prepared and served written submissions. Those submissions are dated 5 September 2016 and deal with the six decisions referred to in the summons.
Magistrate Lee's costs order of 10 December 2015 (decision 4) is dealt with in paras 102 to 109 and his Honour Judge Bozic's decision dismissing the appeal from that order (decision 2) is dealt with in para 113. The latter paragraph provides: On 7 June 2013, Judge Bozic rejected the appeal against costs without considering that the Magistrate Lee did not act according to the statutory requirements awarding costs on indemnity basis. The Sec 2 - Object of the Crimes (Domestic and Personal Violence) Act defines limitations on costs that can be awarded, providing the proceedings were speedy and simple.
The reference to Sec 2 appears to be a reference to subsection 9(2)(b) of the Act.
In oral argument Ms Majak accepted that in the appeal proceedings before Bozic DCJ there was oral argument on 17 March 2016 following which Bozic DCJ reserved his decision. Written submissions were also produced. Those of Ms Majak are dated 16 March 2016 (29 pages plus a further 20 pages) and 3 June 2016 (12 pages). On 7 June 2016 his Honour announced his decision and gave oral reasons. Neither party was able to provide a copy of any transcript of those reasons, although a transcript has been requested.
Ms Majak has exercised her right of appeal from the original costs order of Magistrate Lee. This Court may, nevertheless, grant relief for jurisdictional error or error on the face of the record in relation to the decision of the District Court dismissing that appeal. However neither the grounds of appeal nor the written submissions filed in support of them identify any basis on which such relief might be granted. In those circumstances this is not a case in which any interim relief should be granted, particularly where it is not suggested that Mr Rose's financial position is such that he could not repay any costs with interest, in the event that he was required to do so as a result of any order of this Court or subsequent determination of the District Court.

[4]

Proposed orders 4 and 5

Orders 4 and 5 are concerned with the part heard APVO proceedings in the Local Court and the determination of Ms Majak's motion for leave to commence a private prosecution against Mr Rose for perjury. In relation to order 4, the grounds of appeal in the summons which appear to be relied on are grounds 1, 2, 3 and 10; and with respect to order 5 the relevant ground would appear to be ground 4. Those grounds are as follows: (1) The Local Court is conducting APVO proceedings having no subject-matter jurisdiction in relation to issues such as registration of caveats and property rights being dealt with by the Family Court in the proceedings SYC 2015/496. (2) That there is abuse of court processes by the Complainant re-litigating issues that are under determination of the Family Court and re-litigating issues from the previous proceedings in relation to the ADVO that expired in December 2015. (3) That the APVO proceedings were commenced to cause damage to applicant's reputation; create unnecessary costs; cause mental distress and vexation, to subject the applicant to criminal investigation and to frustrate the Family Court proceedings. (4) The Applicant was subjected to procedural unfairness by the court deferring the Notice of Motion seeking leave to commence private prosecution in relation to perjury committed by the Complainant. … (10) That the Complainant gave evidence during the current APVO proceedings on 22 June 2016 indicating that that the facts constituting fraud, non-disclosure or surprise were controlling factors in the procurement of the previous ADVO, without which the current Interim APVO would not have been made as it was made.
There is no basis identified in Ms Majak's written submissions (which in relation to decision 1 are dealt with in paras 58 to 66) for this Court taking the most unusual course of staying the part heard APVO proceedings. The Local Court has jurisdiction to hear that application. It has not yet made a substantive order. If such an order is made against Ms Majak's interests, she has a right of appeal to the District Court. In these circumstances I reject the application for a stay of those proceedings.
Ms Majak's alternative application is that this Court determine her motion seeking leave to commence contempt proceedings. That application was properly made to Magistrate Lee. Section 338(1)(c) of the Crimes Act provides that a person is not to be prosecuted for perjury by any person other than the Director of Public Prosecutions or at the direction of the Attorney General, except with leave of the "judicial officer who constituted the judicial tribunal before which the perjury is alleged to have been committed". That tribunal is not this Court. The present case is not one in which it is, within s 338(2) "impossible or impracticable" to apply for leave to prosecute in accordance with s 338(1)(c). Ms Majak has made that application to the learned Magistrate who has indicated that he will deal with it at the conclusion of the argument in relation to the part heard application for the APVO. The application to this Court for such an order is rejected.

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