Majak v Rose

Challenge to APVO

1. The gravamen of Ms Majak's complaints with respect to the orders made against her is primarily that the respondent, her former domestic partner, gave false evidence in support of the ADVOs, and that his legal representative made false submissions in support of those orders. These statements, according to the applicant, allowed the course of justice to be "diverted", because the magistrate either did not allow sufficient cross-examination to expose the falsity of the evidence, or accepted the veracity of evidence said by the applicant to be untruthful.
2. As was put to the applicant in the course of argument, the gravamen of her complaint seemed to be that the purpose and objects of the Domestic Violence Act are limited to threats of personal violence, no doubt including intimidation. However, the terms of s 7 make it clear that "intimidation" includes "harassment" and, as stated in s 16(3), need not involve threatened violence.
3. In his judgment of 5 July 2017, Buscombe DCJ set out with some care the issues to be determined and the function of the District Court hearing an appeal under the Appeal and Review Act. He stated, after reference to Charara v The Queen: [5] "The appeal is not a hearing de novo. I am to form my own judgment as to the facts so far as I am able to do so, recognising the advantage enjoyed by the Magistrate who saw and heard the witnesses called in the court below. In exercising the jurisdiction I am to consider both the evidence below and the reasons of the Magistrate. The appellant to succeed on an appeal, however, is not required to demonstrate error by the Magistrate. Keeping those principles firmly in mind I have approached the evidence in the appeal and have considered the Magistrate's reasons."
4. There was no basis to think that the judge misunderstood the nature or extent of his jurisdiction; further, the succeeding pages of his judgment demonstrated an application of the relevant principles in a structured and comprehensive manner. No purpose is served by summarising the content of a significant judgment.
5. In the course of argument the applicant submitted that she had established error on the part of the magistrate in failing to have regard to various matters. She submitted that if procedural unfairness were demonstrated, then that was a basis for the District Court to intervene and reconsider the findings which had been made by the magistrate. It is true that if procedural unfairness were established which suggested that particular findings should not have been made, that would have been a basis for the District Court judge to intervene. However he did not find that that was the case.
6. In written submissions in this Court, the applicant stated as the primary issue: [6] "The fact of Judge Buscombe refusing to deal with the fraud upon the court, which contaminated the previous proceedings have affect [sic] on the current proceedings. The current APVO was granted as a renewal of the expired ADVO, under the assumption that there must have been legal reasons for granting the extension of the previous ADVO."
7. Most of the subsequent submissions involved a repetition of complaints which have been before this Court on previous occasions, and which were repeated in oral argument, but the thread remained the same. Thus, towards the end of lengthy written submissions, the applicant stated: [7] "The unresolved errors that occurred during the appeal against the expired ADVO created prejudice leading into granting of the current APVO. If the jurisdictional errors made in earlier proceedings were resolved, the current APVO could not have been granted."
8. Following allegations of "dishonest conduct" on the part of the respondent's solicitor, the applicant then alleged a series of legal errors on the part of magistrates and judges in the District Court other than the primary judge in this matter and challenged the correctness of the judgment in this Court in Majak (No 3). However, none of this material demonstrated any error on the part of Judge Buscombe.
9. On 6 September 2017 the applicant filed further written submissions comprising 26 pages. Some 20 additional paragraphs were included, but the substance of the challenges to the judgment under review was not advanced.
10. In considering the jurisdiction of this Court, it is important to note that the applicant failed to resist the order sought in the Local Court, significantly, on the ground that her evidence was not accepted. Judge Buscombe summarised the findings of credit made by the magistrate in the following terms: [8] "The magistrate found the appellant to be generally unreliable and self-serving in her evidence. He noted that she showed a deep-seated animosity towards the respondent. The magistrate found that the appellant was obscuring the truth in her evidence, that at times she made allegations about the respondent not supported by the documentary evidence. … Having read the transcript of the appellant's evidence, I consider … the magistrate's findings about her evidence and credibility to be well-founded."
11. With respect to the respondent, the primary judge made the following statement: "In relation to the respondent the magistrate noted that he too was difficult to keep focused on the relevant issues but, despite some inconsistencies in his evidence, essentially accepted his evidence. Again upon a reading of the transcript I consider that the magistrate's assessment is one that I should adopt, especially noting the magistrate had the opportunity to see the witnesses giving their evidence."
12. The summons in this Court set out 11 grounds, although when sub-grounds are taken into account, there were more than 30 specific challenges. Most of the grounds attacked the manner in which the primary judge dealt with the matter, including numerous allegations of failing to take account of evidence. Neither the grounds, nor the written submissions in support, provided a basis for demonstrating jurisdictional error on the part of the primary judge. Accordingly, so far as the amended summons dealt with the substantive judgment given on 5 July 2017, it must be dismissed.

Challenge to costs matters

1. There remains the challenge to the dismissal of the appeal against the costs orders made in the Local Court at Gosford, the awarding of costs in relation to the appeal and the referral of the notice of motion to the Registrar.
2. The question of costs was not raised in submissions filed by the applicant on 2 August 2017, or in her supplementary submissions filed on 6 September 2017. On 23 October 2017 she filed a further submission (in reply to the respondent's written submissions) which covered 20 pages, with two attachments, one of which listed a number of "false statements" made by the respondent. There was no reference to the question of costs, although it had been raised in ground 7 (first appearing) of the amended summons.
3. The primary judge dealt with the appeal against the costs order made in the Local Court, awarding a sum a little in excess of $16,000 to the respondent. He noted the finding that "the appellant had prolonged the proceedings by introducing and seeking to introduce irrelevant material." [9] He referred to the relevant statutory provision, noted that the proceedings had run for three days in the Local Court, before the day of judgment, and that there were other mentions and preparatory steps which meant, in his view, that "the costs that were awarded were just and reasonable". [10] He expressed the view that there was "no merit in the costs appeal", and it was dismissed. No error (let alone jurisdictional error) has been identified in that order. Accordingly, there is no substance in the application to review the dismissal of the appeal from the costs order made in the Local Court.
4. There remains the question of the costs order made in the District Court. Following the delivery of judgment, the respondent sought costs. The application was made for an amount of $21,850. The judge remarked that it was unlikely that he would find that amount to be just and reasonable. The proceedings were then adjourned.
5. The matter was adjourned to 4 August 2017, on which occasion the judge made an order that the appellant pay the respondent's costs of the appeal in an amount of $11,000 inclusive of GST. No grounds were identified for challenging that decision as involving jurisdictional (or any other) error.

Conclusion

1. It follows that the applicant's amended summons filed in this matter on 6 September 2017 should be dismissed. The applicant must pay the costs of the first respondent, Alan Wesley Rose, of the proceedings in this Court.
2. MACFARLAN JA: I agree with Basten JA.
3. SACKVILLE AJA: I also agree with the orders proposed by Basten JA and with his Honour's reasons.

Endnotes

1. Domestic Violence Act, s 84(3), (4).
2. Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [8]-[10].
3. [2017] NSWCA 104.
4. Majak (No 3) at [49]-[60].
5. [2006] NSWCCA 244; District Court judgment, p 3.
6. Applicant's submissions, 2 August 2017, par 6.
7. Appellant's submissions, par 47.
8. District Court judgment, p 8.
9. District Court judgment, p 10.
10. District Court judgment, p 11. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 October 2017