Majak v Rose (No 3)

1. [1]

   LEEMING JA: I agree with Simpson JA.

2. [2]

   SIMPSON JA: By Amended Summons filed on 3 February 2017, the applicant seeks, pursuant to s 75 of the Supreme Court Act 1970 (NSW), declaratory relief in respect of four decisions, all of which were made in the context of proceedings between the parties under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (“the DaPV Act”). Taken chronologically, the decisions are those of:

3. [3]

   The applicant named the “Local Court in Gosford” and the “District Court in Gosford” as, respectively, the first and second respondents, and Alan Wesley Rose as the third respondent. Submitting appearances having been filed on behalf of the first and second respondents, I will refer to Mr Rose as “the respondent”.

4. [4]

   It is convenient here to state in full what the applicant seeks to have reviewed. The following is drawn from the filing details contained in the Amended Summons (for ease of comprehension, the format has been adjusted, without alteration to the content):

5. [5]

   From the material filed in support of the application, it is not easy to discern the full and somewhat tortuous history of the proceedings that give rise to the present application. Initially, the Court was provided with copies of one white folder, labelled “Supplementary Folder”. This folder was marked Exhibit B. At the hearing of the application, the applicant was invited to identify the material on which she relied. Eventually, the Court had available to it a second white folder, which was marked Exhibit A, containing transcripts of some (but not all) of the hearings in question, the judgments, some written submissions made by the applicant in those hearings, and some other documentary material. It has not been possible to identify with any precision the evidentiary material placed before the various judicial officers.

6. [6]

   The following appears to be a reasonable approximation of the relevant chronology. In the absence of the evidence adduced in the various proceedings, the outline of facts has been drawn, so far as possible, from the judgments sought to be reviewed. In some instances I have had recourse to JusticeLink in order to ascertain what proceedings have been taken and orders made.

Background and procedural chronology

1. [7]

   It appears that the applicant (Ms Zofia Majak) and the respondent lived for some time in a domestic relationship. They jointly owned (inter alia) a property at Ettalong, on which were constructed two residential units. The relationship ended and a dispute over the division of property ensued. This was principally litigated in the Family Court of Australia, and, to some extent, in the Supreme Court.

2. [8]

   Early in 2014, on dates which are unclear on the evidence, each party sought orders against the other under the DaPV Act. The DaPV Act provides for two kinds of orders:

3. [9]

   Section 22, in Pt 6, provides for the making of interim ADVOs if it appears to the court that it is necessary or appropriate to do so in the circumstances.

4. [10]

   By s 84(1) of the DaPV Act and s 4 of the Crimes (Appeal and Review) Act 2001 (NSW) (“the Appeal and Review Act”), a defendant against whom an ADVO has been made in his or her absence may apply to the Local Court for annulment of the order. By s 8(2) of the Appeal and Review Act, the court must grant an annulment sought by the defendant if satisfied that the defendant was not aware of the original proceedings until after the completion or was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the proceedings, or that having regard to the circumstances of the case, it is in the interests of justice to do so.

5. [11]

   On 18 February 2014 an interim ADVO was made against the applicant in favour of the respondent. On 12 June 2014 the applicant consented (without admissions) to a final ADVO with a duration of 6 months. The applicant was present in court when the order was made. It will be necessary to set out the full terms of the order below. For the moment, it is sufficient to note that it included standard non-molestation and non-intimidation conditions.

6. [12]

   According to a chronology provided to this Court by the respondent (with which the applicant did not take issue), on 11 July 2014 the applicant applied to revoke the final order. The matter was mentioned in the Local Court on 29 and 31 July 2014; on the latter date directions were made with respect to the filing of evidence. The applicant failed to comply with those directions and filed no evidence. Accordingly, on 2 October 2014, her application for revocation was dismissed. JusticeLink records confirm that on that day an “Ancillary Apprehended Violence Orders Application to Vary Final Apprehended Violence Order” was dismissed for “non-compliance”.

7. [13]

   On or about 16 October the applicant applied, purportedly under s 84 of the DaPV Act, to annul both the interim order and the final order, notwithstanding that she had been present when the final order was made (s 84 applies only where an order was made in the absence of a party).

8. [14]

   On 22 October the respondent applied for variation of the order by its extension for a further period of 2 years. He set out the reasons for the application.

9. [15]

   On 23 October the matter was listed before Deputy Coroner Lee, sitting as a magistrate in the Local Court at Gosford. His Honour dealt with four separate matters. The first was a question of costs relating to earlier proceedings in which the applicant had unsuccessfully sought an ADVO against the respondent. The circumstances of that application are not before this Court. Lee LCM ordered the applicant to pay costs, quantified at $3,410. The second matter was the applicant’s applications for annulment, which he dismissed, holding that he had no jurisdiction with respect either to the interim or the final order – the first because it had been superseded by the final order and was no longer in existence, the second because s 84 was limited in its application to orders made in the absence of the party applying for annulment, and the applicant had been present. The third matter was the respondent’s application for extension of the ADVO against the applicant, in relation to which he gave procedural directions. The fourth was an application (more properly a request) by the solicitor representing the respondent for correction of the court’s record of the order of 12 June 2014. Lee LCM accepted that the record did not fully reflect the order that had been made (by consent) on that day, and, accordingly, he requested that the record be corrected. It will be necessary to consider this correction in more detail in due course.

10. [16]

    The respondent’s application for extension of the ADVO next came before Lee LCM on 25 June 2015. The applicant was represented by a Mr Manning. His Honour extended the order, not by the 2 years sought by the respondent, but by 6 months, so that it expired on 25 December 2015.

11. [17]

    On 22 October 2015, the applicant filed an appeal to the District Court against the order by which the duration of the final order of 12 June 2014 was extended by 6 months. Appended to the Notice of Appeal was a document entitled “Details of Appeal”, which set out 12 grounds of appeal, together with some brief factual submissions.

12. [18]

    On 25 November 2015 the appeal came before Mahony DCJ. The transcript of the hearing of the appeal is not before this Court, although his Honour’s revised reasons for judgment are. After hearing the parties, Mahony DCJ delivered judgment, dismissing the appeal.

13. [19]

    On 10 December 2015 Lee LCM ordered the applicant to pay the respondent’s costs of the extension proceedings in the Local Court, quantified at $20,206.56.

14. [20]

    On 1 February 2016 the respondent filed a fresh application for an ADVO, alleging that the applicant had entered one of the two residential units at Ettalong, the one that had been occupied by the respondent. Also on 1 February 2016, a garnishee order was made against the applicant’s wages in relation to a judgment debt arising from the costs order made on 10 December 2015.

15. [21]

    On a date not disclosed in the evidence, the applicant filed an appeal in the District Court against the costs order made by Lee LCM on 10 December 2015. That appeal came before Bozic DCJ on 4 May 2016. His Honour delivered judgment on 7 June 2016. He granted leave to the applicant to appeal out of time, but dismissed the appeal. He ordered the applicant to pay the costs of the appeal, quantified at $5,060. This incorporated a finding that the costs ought to be paid on an indemnity basis.

16. [22]

    After Bozic DCJ made those orders, the applicant sought to be heard on a notice of motion that she had filed. The notice of motion is not before this Court. It was described by the applicant as being “under s 36.15”. It may be inferred that what the applicant was referring to was r 36.15 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), which provides as follows:

17. [23]

    In the proceedings before Bozic DCJ the applicant stated that the orders she sought in the notice of motion were:

18. [24]

    From this, it is very likely that what the applicant was seeking to do by this notice of motion was, by another route (having failed in her appeal to Mahony DCJ), to challenge the order of Lee LCM extending the duration of the ADVO, and his correction of the record of the order of 12 June.

19. [25]

    Bozic DCJ held that reliance on UCPR 36.15 was “entirely misconceived” and struck out the notice of motion and declined to interfere with the orders of Lee LCM.

20. [26]

    On 24 October 2016 Williams LCM made a further ADVO under Pt 4 of the DaPV Act, in favour of the respondent. This order is not the subject of the Amended Summons.

21. [27]

    Throughout the proceedings, the respondent was represented by a solicitor, Mr Marc Riviere.

The present application

1. [28]

   The orders sought by the applicant, as framed in the Amended Summons, are:

2. [29]

   The grounds are stated as:

The decisions in respect of which the applicant seeks relief

1. [30]

   As indicated above, four decisions are the subject of the application. I will deal with them chronologically (in reverse order to the way they are identified in the Amended Summons).

2. [31]

   The first decision is that of Lee LCM of 23 October 2014. As indicated above, on that day, Lee LCM dealt with four separate matters:

3. [32]

   In her written submissions in support of Ground 11, the applicant asserted that:

4. [33]

   It is only necessary to examine the factual basis of the applicant’s assertion in order to reject it.

5. [34]

   The order that the applicant claims was “changed” was that made, by consent, on 12 June 2014 by Lee LCM. The applicant was present when the order was made. The order has not been included in the papers in the White Folder prepared by the applicant. The JusticeLink record of that date, in fact, contains two entries, almost (but, importantly, not quite) identical. One of the entries (it is not possible to determine which is first and which is second) is in the following terms:

6. [35]

   The other entry is identical until the end of Order 3 when the following appears:

7. [36]

   It will be seen that in the second mentioned document, Order 13 replicates Order 7 in the previously mentioned document. The difference between the two is only the numbering. The content is identical. It is “Order 13” that the applicant contends was added, “without jurisdiction”, by Lee LCM on 23 October 2014.

8. [37]

   The JusticeLink entries provide no explanation for the existence of two, essentially identical, orders in different formats. That explanation is to be found in the transcript of proceedings of 23 October 2014. The transcript records the respondent’s solicitor as saying:

9. [38]

   There followed some discussion between Lee LCM and the respondent’s solicitor. His Honour accepted, by reference to his handwritten notes, that there had been an omission from the record of the orders. The applicant was present during this exchange. His Honour gave her an opportunity to comment on the proposed correction, to which she stated her objection. The objection she stated was that she had been “coerced” into consenting to the original order. At no time did she contest the solicitor’s assertion, and the magistrate’s confirmation, that the 12 June 2014 orders as made had in fact included “Order 13” as it now appears in the JusticeLink record. Having heard from the applicant, his Honour acceded to the application on behalf of the respondent, and said:

10. [39]

    From the wording of the Amended Summons, and the applicant’s written and oral submissions, it can be discerned that her contention is that Lee LCM lacked jurisdiction to make the correction because it was not initiated by a written application or notice of motion. She has not identified any statutory requirement that an application to correct an order be made by formal document. Importantly, she has not in any way suggested that the orders to which she consented on 12 June 2014 did not include an order in the terms of “Order 13”.

11. [40]

    In Order 8 as sought in the Amended Summons and in Ground 11, the applicant referred to s 72 of the DaPV Act, apparently as the basis upon which she contends that what she calls “an order” (but which is, in reality, the correction of an order) was made without jurisdiction.

12. [41]

    Section 72 is the first section in Div 5 of Pt 10 of the DaPV Act. Division 5 deals with variation or revocation of orders made under Pt 10. Section 72 is a definition provision; the applicant acknowledged, during the course of the hearing in this Court, that she had intended to refer to s 72A, which provides for the making of applications for variation or revocation of ADVOs. Sub-section (2) of s 72A provides:

13. [42]

    It appeared to be the applicant’s contention that the “application” for correction of the record of the orders made by Mr Riviere was an application for variation of the ADVO within s 72A, and could, therefore, only be made by the respondent himself or a police officer, where, in fact, it was made by the respondent’s solicitor.

14. [43]

    The contention is misconceived on two counts. First, the application was not for variation of the ADVO, but for correction of the record of orders that had been made. Section 72A had no application. Second, where an application may be made by a party, it may be made by a solicitor acting on his or her behalf.

15. [44]

    There is no jurisdictional error (see Order 8 as sought) in this respect and no basis for any declaration of error. As the applicant was present at the hearing when the order was originally made, and was present, and was invited to make submissions, when it was sought to be corrected, there was no denial of procedural fairness that might be characterised as jurisdictional error. It may be emphasised that, when invited to comment on the solicitor’s request, she did not contend that an order in terms of “Order 13” had not been made in the original proceeding. Rather, despite the efforts of Lee LCM to have her focus on whether the orders of 12 June incorporated an order in terms of “Order 13” as it appears in the JusticeLink record, she sought to call in question the consent she had given to the order.

16. [45]

    The applicant has failed to establish any foundation for declaratory relief or any other relief in respect of that decision. It is not necessary to deal with the lengthy period of time which has elapsed between the making of the orders now sought to be judicially reviewed.

17. [46]

    The second decision of which the applicant complains is also said to be that of Lee LCM of 23 October 2014. There do not appear to be any stated orders sought or grounds pleaded referable to the second decision in respect of which the applicant seeks declaratory relief. That decision is identified by her in the Amended Summons as a “decision of the Local Court to commence proceedings to extend ADVO on 23 Oct 2014”. In fact, no such decision was made on that date.

18. [47]

    The relevant facts are as follows. On 22 October 2014 the respondent filed an application to vary (by extending) the existing ADVO. That application was listed, but not dealt with, on 23 October 2014. All that happened, as the transcript reveals, was that Lee LCM gave directions for the further progress of the application, which was finally disposed of on 25 June 2015. On that day Lee LCM did extend the order, but by 6 months rather than the 2 years sought by the respondent. There was never any decision by the Court, whether on 23 October 2014, 25 June 2015 or any other date, “to commence proceedings to extend ADVO”.

19. [48]

    There is no basis for declaratory relief in what occurred on 23 October 2014 in relation to the respondent’s application for extension of the ADVO. The order made on 25 June 2015 was the subject of an appeal to the District Court, determined by Mahony DCJ on 25 November 2015, and is not itself the subject of the Amended Summons.

20. [49]

    The third decision in question is that of Mahony DCJ of 25 November 2015. The proceeding before his Honour was an appeal against the decision of Lee LCM to extend, by 6 months, the ADVO granted by Lee LCM. Mahony DCJ dismissed the appeal. The framing of the orders sought in the Amended Summons would suggest that what the applicant claims is judicial review under s 69 of the Supreme Court Act. If so, by reason of s 176 of the District Court Act 1973 (NSW) (because the jurisdiction being exercised by Mahony DCJ was the criminal jurisdiction of the District Court), she must establish jurisdictional error: Spanos v Lazaris [2008] NSWCA 74 at [12]-[15]; Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2016] NSWCA 379 at [31]-[34]; Lazarus v Independent Commission Against Corruption [2017] NSWCA 37 at [32] and [152].

21. [50]

    The applicant’s contentions appear to be:

22. [51]

    With respect to Grounds 8 and 9, which allege denial of procedural fairness in specified respects, it is only necessary to observe that the material provided to this Court by the applicant did not include any transcript of the oral evidence or the exhibits that were before Mahony DCJ. In those circumstances it is not possible for this Court to make any assessment of the assertions contained in the grounds. I note that the applicant made reference to statements of alleged facts contained in written submissions and incorporated in the supplementary material provided to this Court as Exhibit A. However, as was explained to her during the course of argument, those submissions are not evidentiary material upon which this Court can act. Grounds 8 and 9 are unsustainable.

23. [52]

    By Ground 5 the applicant contends that Mahony DCJ failed to discharge his obligations under s 18 of the Appeal and Review Act. Sub-sections (1) and (2) of that section provide:

24. [53]

    Mahony DCJ opened his judgment by observing:

25. [54]

    It is convenient to set out those bases as described by Mahony DCJ. His Honour said:

26. [55]

    Mahony DCJ then noted a further submission (of no apparent relevance) by the applicant concerning her motivation for bringing the appeal.

27. [56]

    He dealt with each of the four grounds, in sequence. As to the first basis, he said that there was no evidence of three versions of the order and that, in any event, the orders made are available to the parties on a court file. The assertion was not a valid ground of appeal. He also found that there was no evidence of any additional order being made, although he noted that, if alteration had been made without the knowledge of a party, there would be procedural unfairness. He dismissed the third basis (asserted misconduct on the part of a legal practitioner) by noting that there had been several complaints to the Legal Services Commissioner concerning the conduct of the respondent’s solicitor. He considered the fourth basis, the allegation of perversion of the administration of justice, as “entirely misconceived”, including the submission that the magistrate was “not guided” by the objects of the Act.

28. [57]

    He said:

29. [58]

    He then proceeded to deal with a Notice of Motion filed by the applicant, which is not relevant to the present proceedings.

30. [59]

    It appears to me to be clear that Mahony DCJ was fully alive to his obligations under s 18 of the Appeal and Review Act, and applied himself to the task of determining the issues that were put before him for determination. He specifically directed his attention to the four arguments put to him by the applicant. In the absence of the evidence, and the transcript, there is no basis for an inference that any other matters were put to him with which he failed to deal. In particular, there is no evidence that any issue was raised concerning the statutory requirements for the making of an ADVO. Grounds 5 and 6 must therefore be rejected. His Honour expressly rejected the applicant’s contention concerning “Order 13”, on the basis that there was no evidence that an order had been added. He recognised that, had an order been added, an issue of procedural fairness would have arisen. Ground 7 must therefore be rejected.

31. [60]

    There is no basis for any interference with the orders made by Mahony DCJ on 25 November 2015, whether by declaration or orders of the kind contemplated by s 69.

32. [61]

    The fourth decision the applicant seeks to challenge is that of Bozic DCJ of 7 June 2016. Although Orders 1 and 2 as sought by the applicant are framed as declarations, the substance appears to be directed to judicial review under s 69 of the Supreme Court Act. That this was her intention is confirmed in her written submission at paragraph 3.

33. [62]

    The proceeding before Bozic DCJ was an appeal against the decision of Lee LCM of 10 December 2015 ordering the applicant to pay the respondent’s costs in the sum of $20,206.56. Bozic DCJ dismissed the appeal.

34. [63]

    By Ground 1 it can be seen that the jurisdictional error alleged is denial of procedural fairness in the asserted failure of Bozic DCJ to deal with a necessary aspect of a determination in relation to costs – that is, that the costs were just and reasonable. This is stated in s 215(1)(a) of the Criminal Procedure Act 1986 (NSW). The applicant further contended that Bozic DCJ failed to consider s 9(2)(b) of the DaPV Act, which states that the DaPV Act aims to achieve its objectives by:

35. [64]

    Each of these submissions essentially relies upon Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26 (at [24]), in which it was held that to fail to respond to a substantial, clearly articulated argument relying on established facts is a denial of natural justice, and, accordingly, jurisdictional error.

36. [65]

    With respect to the order that the costs be paid on an indemnity basis, the applicant complained that Bozic DCJ failed to “establish legal grounds” for such an order, failed to establish whether there was a genuine offer of compromise, and failed to establish whether it was unreasonable for her not to accept the offer.

37. [66]

    By s 99 of the DaPV Act, a court may award costs. The costs are to be determined in accordance with s 215 of the Criminal Procedure Act: see Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115.

38. [67]

    The transcript of the proceedings before Bozic DCJ is included in the materials available to this Court. The documentary evidence provided to establish the quantum of costs was not. (There were, in Exhibit B, Tab 9, a number of invoices from the respondent’s solicitor, but it is not at all clear that all or any of these relate to the costs of the extension application before Lee LCM, the only costs presently relevant.)

39. [68]

    The transcript of the proceedings before Bozic DCJ shows that, despite his Honour’s best efforts, the applicant sought to address issues that did not arise in relation to the limited issues that were before him. The applicant repeatedly sought to challenge the order made by Lee LCM extending the term of the ADVO, and not the consequential costs order. Although she appears to have challenged one item on an invoice, the response to that, by the respondent’s solicitor, was that that amount was not included in the invoice submitted under s 215. There was otherwise no contention by the applicant that the amount of costs claimed was other than just and reasonable. That disposes of the applicant’s reliance on Dranichnikov.

40. [69]

    The relevant passages in the judgment of Bozic DCJ are the following:

41. [70]

    His Honour went on to say:

42. [71]

    Section 9(2)(b) of the DaPV Act has no bearing on either the decision to award costs or the quantification of the costs. Section 9(2)(b) is directed to court processes and to the efficient management of business with as little inconvenience, delay, expense and danger as can be achieved consistently with justice. There was no error in his Honour failing to mention that section.

43. [72]

    The remaining matters raised were fully dealt with by his Honour and his reasons exposed.

44. [73]

    In written submissions in support of the present application, the applicant referred to three submissions she had put, in writing, before Bozic DCJ. These were also before this Court in Exhibit A.

45. [74]

    The applicant, in oral submissions, suggested that Bozic DCJ had not read, or taken account, of her submissions. In the light of the transcript, this cannot be sustained. After hearing argument, Bozic DCJ said:

46. [75]

    His Honour then reserved his decision, which he delivered on 7 June 2016. There is no reason to think that he did other than read all of the submissions that the applicant had put before him.

47. [76]

    The applicant concluded this part of her written submissions with the following:

48. [77]

    That, of course, is quite irrelevant to the appeal against the order that costs be paid. It is plainly directed to the commencement by the respondent of the extension proceedings, something which was fully dealt with, both at first instance and on appeal. The very fact that the application was successful in part contradicts any assertion that it was not reasonable to commence the proceedings.

49. [78]

    Notwithstanding the above, a primary focus of the applicant’s argument in relation to the judgment of Bozic DCJ was concerned with UCPR r 36.15. Bozic DCJ dealt with that, holding (correctly) that the Rule is to be found in the UCPR, which have no application to criminal proceedings, as proceedings under the DaPV Act are characterised. In addition to that, it can be seen from the language of r 36.15, that power is given to a court to correct its own judgments where they are found to have been made irregularly, illegally, or against good faith. The Rule is not available to enable one court to correct the judgments of another court. That is the function of the appeal process, a process of which the applicant availed herself, in this case unsuccessfully.

50. [79]

    The applicant’s reliance on r 36.15 is no more than an attempt to launch a second appeal against the extension order. Bozic DCJ was correct to reject it.

51. [80]

    There is no jurisdictional error established in relation to the orders made by his Honour. Nor is there any basis for a declaration in any of the terms sought by the applicant. Ground 4, claiming an order for repayment of amounts the subject of a garnishee, is consequential upon the other grounds, and need not separately be addressed.

52. [81]

    The Amended Summons should be dismissed with costs.

53. [82]

    EMMETT AJA: These proceedings are concerned with a dispute between Ms Zofia Majak and Mr Alan Rose. Ms Majak and Mr Rose lived for some time in a domestic relationship and jointly owned a property at Ettalong, on which two residential units were constructed. After their relationship ended, a dispute developed over the division of their property that led to proceedings in the Family Court of Australia and in the Supreme Court of New South Wales.

54. [83]

    In early 2014, applications were made by both Ms Majak and Mr Rose for orders under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (the Act). That led to proceedings in the Local Court in October 2014, in the District Court in November 2015 and again in the District Court in June 2016. By summons filed on 3 February 2013, Ms Majak seeks a variety of orders in relation to various decisions made by the Local Court and the District Court. Relief is claimed under s 69 of the Supreme Court Act 1970 (NSW) by way of judicial review of the orders of those Courts.

55. [84]

    I have had the considerable advantage of reading in draft form the proposed reasons of Simpson JA for concluding that the summons should be dismissed with costs. I agree, for the reasons proposed by her Honour, that the summons must be dismissed and that Ms Majak must pay Mr Rose’s costs of the proceedings.