Majak v Rose & Ors

Zofia Bozena Majak (the plaintiff) has brought proceedings against Alan Wesley Rose (the first defendant), Sheila Rebeiro (the second defendant) and Marc Riviere (the third defendant). The plaintiff has conducted the proceedings on her own behalf. The pleadings in the Statement of Claim are such that there is a degree of obscurity surrounding the precise nature of the cause(s) of action the plaintiff seeks to bring. I therefore propose to set out my factual findings, attempt to identify the cause(s) of action and their bases, and then consider whether any such cause(s) of action are made out on the evidence.

In setting out my factual findings I should note that many of the relevant facts are not in dispute, for the simple reason that they are matters of record. Where any material fact is disputed, I have indicated the nature of the dispute and my resolution of it.

With consent of all parties, a Court Book (CB) containing documentary evidentiary material was admitted into evidence. [1] A Supplementary Court Book (SCB) was also tendered. [2]

The plaintiff and the first defendant were previously in a de facto relationship which broke down, and which was the subject of proceedings brought by the plaintiff in the Family Court of Australia. Those proceedings were determined by McClelland J who found (inter alia) that the relationship commenced in early 2009 and ended in October 2012, a period of approximately 3½ years. [3]

The first defendant and the second defendant commenced a relationship in 2013. [4]

The third defendant is a solicitor who acted on the instructions of the first defendant in proceedings brought by the plaintiff against the first defendant, and in proceedings brought by the first defendant against the plaintiff, in the Local Court. Those proceedings are examined in further detail below.

In January 2014, the first defendant was served with an application for an Apprehended Domestic Violence Order (ADVO) which had been filed by the plaintiff [5] (the plaintiff’s application). The grounds for the plaintiff’s application included the following: [6]

After making further allegations against the first defendant, the grounds for the plaintiff’s application concluded: [7]

On 23 January 2014, the first defendant retained the third defendant to obtain advice in relation to the plaintiff’s application. [8] The events which caused the first defendant to engage the third defendant included the fact that, according to the first defendant, the plaintiff had:

The first defendant also asserted that he had received correspondence from the plaintiff which was of a generally harassing nature and which was having an adverse impact on his relationship with the second defendant. [10]

When consulted, the third defendant advised the first defendant that he should file his own application for an ADVO against the plaintiff. The first defendant gave the third defendant instructions to bring such an application. [11] The third defendant then prepared an application in accordance with those instructions which was filed on 5 February 2014 [12] (the first application).

A copy of the first application was served on the solicitor who acted for the plaintiff at that time. [13] Receipt of it was acknowledged. [14]

The first application came before the Local Court on 18 February 2014. [15] On that occasion, the third defendant informed the presiding Magistrate that a copy of the application had been served on the solicitor who then acted for the plaintiff, and that he (the third defendant) had instructions to seek an interim order. [16]

An order naming the first defendant and the second defendant as protected persons (the interim order) was made by the Magistrate pursuant to s 19 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (the DV Act). The interim order imposed various restrictions on the plaintiff, [17] and prevented her from:

On 25 February 2014, and again on 1 April 2014, the first application, along with the plaintiff’s application, came before the Local Court for mention. On the latter occasion, a date of 12 June 2014 was set for the hearing of both applications. [19]

It should be noted at this point that in the course of the hearing before me, the third defendant was cross-examined by the plaintiff at some considerable length regarding his conduct during the period in which he was acting for the first defendant. Much of that cross-examination was irrelevant although commendably, and in circumstances where the plaintiff was self-represented, counsel for the third defendant took a pragmatic approach and allowed the questioning to proceed, largely without interruption or objection. The plaintiff made various assertions of impropriety on the part of the third defendant when cross-examining him. Having carefully observed the third defendant when answering questions, and on the whole of the evidence, I am satisfied that at all times when acting for the first defendant, the third defendant did so entirely appropriately, completely honestly, and strictly in accordance with his instructions.

Despite the terms of the interim order, the plaintiff continued to contact the first defendant throughout February and March 2014. [20] This was reported by the first defendant to police on 6 March 2014, [21] as a consequence of which the plaintiff was charged with breaching the interim order. On 2 October 2014, that charge was dismissed on the basis that the Magistrate could not be satisfied beyond reasonable doubt that the plaintiff had been served with the interim order. [22]

The plaintiff’s application, and the first application, both came before the Local Court for hearing on 12 June 2014. Due to the number of matters which were listed before the Court on that day, the third defendant formed the view that it was unlikely that either application would be heard and determined. [23] The first defendant instructed the third defendant that he would not consent to an order being made against him, and the third defendant advised him that he (the first defendant) may need to give “reciprocal undertakings”. [24]

The third defendant said that after both applications had been mentioned and stood in the list, he met with the plaintiff and her partner in the presence of a Court Domestic Violence officer, Ms Tania McPhee. [25] I am satisfied that the third defendant informed the plaintiff on that occasion that:

The third defendant’s evidence was that following his discussions with the plaintiff, she indicated to him that she would “consent to a final order for a period of six months if (the first defendant) [gave] an undertaking in similar terms for the same period”. [26]

The plaintiff’s evidence [27] of what occurred at the Local Court on 12 June 2014 is, but for one matter, generally consistent with the evidence of the third defendant which I have set out, and which I accept. I do not accept the plaintiff’s evidence that the third defendant “coerced” her into consenting to the making of a final order for 6 months, nor do I accept the plaintiff’s evidence that the third defendant “interfered” with her partner. In this regard it is noteworthy that part of the evidence adduced by the plaintiff is a file note which was prepared at the time by Ms McPhee, [28] a person who was obviously entirely independent of the dispute between the plaintiff and the first defendant. There is nothing in that file note which even remotely suggests that the third defendant behaved in a coercive or interfering manner, in circumstances where the plaintiff expressly agreed in cross-examination that there was nothing in the file note which was incorrect. [29] It is also noteworthy that it was never squarely put to the third defendant in cross-examination that he had coerced the plaintiff into taking a particular course, or that he had interfered with her partner. I am satisfied that the events of 12 June 2014 at the Local Court took place in the manner in which the first defendant and the third defendant have described them.

On 12 June 2014, following the discussions set out above, an order was made in the Local Court pursuant to the first application, for a period of 6 months, naming the first and second defendants as protected persons (the final order). The final order imposed various restrictions on the plaintiff, in terms which were not dissimilar to those imposed by the interim order. [30] I am satisfied that the final order was explained to the plaintiff by the Magistrate, and that the plaintiff expressed her understanding of its terms. [31]

The affidavit of the third defendant sets out the nature and extent of other proceedings brought by the plaintiff against the first defendant [32] (aside from proceedings in the Family Court of Australia which I have addressed separately below). They include constitutional challenges, and applications for prerogative writs. They were instituted in a variety of jurisdictions, both in New South Wales and elsewhere. They were generally unsuccessful. Many resulted in costs orders being made against the plaintiff, often in substantial sums. Those proceedings reflect an incessant litigious pursuit of the first defendant by the plaintiff which, as the outcomes of the various proceedings demonstrate, has proved to be largely without merit. Consistent with that, I found the plaintiff to be a largely unsatisfactory witness. Whilst I accept that she was at some disadvantage as a self-represented litigant, her answers in the course of cross-examination, particularly cross-examination by counsel for the first and second defendants, were often non-responsive to the question asked. Other assertions she made were grossly overstated. [33] Overall, the plaintiff conveyed the distinct impression that she was a person who had considerable animosity towards the first defendant (and, to some extent, the second defendant) and who was prepared to take every opportunity to make statements with the intention of discrediting both of them, and with the intention of attempting to further her own position in the present proceedings, regardless of whether such statements were right or wrong.

In November 2014, the first defendant brought an application in the Local Court to extend the final order. That application was ultimately granted on 25 June 2015, with the consequence that the order continued for a period of 6 months from that date. [34]

In January 2015, the plaintiff commenced proceedings against the first defendant in the Family Court of Australia. [35] The hearing of those proceedings extended over several days in 2018 and 2019, and culminated in the judgment of McClelland J being delivered on 24 December 2019. [36]

An appeal brought by the plaintiff to the Appeal Division of the Family Court of Australia was dismissed. [37]

On 1 February 2016, the first defendant filed an application against the plaintiff in the Local Court for a further ADVO naming himself and the second defendant as the persons who were in need of protection (the second application). The second application was heard over a period of 3 days before Magistrate Williams. On 24 October 2016, his Honour delivered judgment and made an order against the plaintiff for a period of 3 years (the second order). [38]

His Honour commenced his judgment by noting the previous proceedings in the Local Court [39] before setting out some of the background to the second application: [40]

Having summarised the evidence, his Honour formed a view of the plaintiff which was not dissimilar to my own. In particular, his Honour said the following: [41]

In making the second order, his Honour made a series of factual findings, including that:

His Honour’s ultimate finding was expressed in the following terms: [46]

The terms of the second order made by his Honour (for a period of 3 years) were as follows: [47]

An appeal against his Honour’s determination was dismissed by Judge Buscombe in the District Court on 5 July 2017. [49]

In addressing the plaintiff's case against the first, second and third defendants before this Court, it is appropriate to go firstly to the Statement of Claim.

To begin with, the following is pleaded concerning the first application: [50]

The Statement of Claim goes on to plead: [51]

Bearing in mind these pleadings, the plaintiff was cross-examined by senior counsel for the first and second defendants in respect of the cause(s) of action she brings: [52]

Later in the cross-examination, the plaintiff was asked: [53]

The plaintiff was then asked: [54]

Finally, the plaintiff was asked: [55]

The plaintiff's written submissions include what are, in my view, a number of extraneous propositions which extend well beyond any relief which has been sought. For example, under the heading “Part 1 – Preliminary” the submissions include the following:

As to these submissions, it should simply be noted that there was no clear pleading of fraud in the statement of claim. Fraud formed no part of the plaintiff’s articulation of her case when cross-examined. Moreover, an order setting aside the judgments of the Local Court does not form part of the relief sought in the Statement of Claim.

The submissions of the plaintiff then advanced a series of propositions which included the following:

It is noted that specific allegations of conspiracy formed no part of the plaintiff’s articulation of her case when she was cross-examined.

Senior counsel for the first and second defendants submitted that on the evidence, the only clearly articulated cause of action brought by the plaintiff was for the tort of collateral abuse of process. It was submitted that in order to make out such a cause of action, it was incumbent upon the plaintiff to establish that:

It was submitted that the evidence failed to establish either of those requirements.

Senior counsel submitted that the judicial determinations which had been made in respect of the first and second applications, which resulted in the making of the interim order, the final order and the second order, were, of themselves, evidence of the immediate and obvious (and thus predominant) purpose for which the first defendant had brought the various proceedings. It was submitted that in these circumstances, the plaintiff had failed to establish that the first and/or second defendants had brought and/or undertaken proceedings for a predominantly improper purpose. This, it was submitted, was fatal to the plaintiff’s cause of action.

It was further submitted that the plaintiff had failed to establish that the proceedings brought against her by the first defendant had been impermissibly utilised in any relevant fashion, be it in the Family Court proceedings or otherwise.

Finally, it was submitted that even if the plaintiff could somehow establish liability, there was an insurmountable difficulty in awarding any damages in her favour because, on the evidence, no such damages had been properly quantified.

Counsel for the third defendant submitted that any cause of action against the third defendant which was based on a collateral abuse of process could not succeed for the simple reason that the third defendant was not a party to any of the proceedings in question.

It was further submitted that any claim based on an alleged conspiracy was entirely without merit, given the complete absence of any evidence from which any agreement could be inferred. Counsel submitted that there was simply no evidence to support the allegation that the third defendant entered into an agreement with either or both of the first and second defendants to embark on a course of action which was designed to damage the plaintiff, and that such allegation should be rejected.

It was further submitted that the evidence established that at all times when acting for the first defendant, the third defendant was doing no more than proceeding according to his instructions, in circumstances where those instructions provided a proper basis for the first and second applications. Counsel further submitted that other allegations that the third defendant submitted false claims, or otherwise misled the Local Court at any time, should be similarly rejected, as should the proposition that the third defendant was a party to a course of conduct which was designed to deprive the plaintiff of her rights.

In Burton v Office of the Director of Public Prosecutions [66] Bell P (as the Chief Justice then was) said the following (citations omitted):

His Honour proceeded [67] to articulate the following elements of the tort:

His Honour also observed that:

An earlier decision of Williams v Spautz [74] established that:

Bearing the above principles in mind, I turn firstly to the plaintiff’s case against the first defendant.

To begin with, it is relevant to note that s 19 of the DV Act is in the following terms:

Section 19 confers a discretion to make an ADVO if the Court is satisfied, on the balance of probabilities, of one or other of the factors in s 19(1)(a) or (b). In making the interim order, the final order and the second order, the Magistrate in each case must have been so satisfied. Such determinations give rise, in each case, to an issue estoppel. [78] They tend completely against the proposition that the first defendant brought any of the proceedings for an improper purpose. They expressly support the proposition that the first defendant brought the proceedings because he and the second defendant were in fear of the plaintiff. The first defendant’s case incorporated a denial that he had brought the proceedings for any improper purpose. I have no reason to reject that denial.

It follows that the first element of the tort of collateral abuse of process is not made out as against the first defendant. On that basis alone, the plaintiff’s case against the first defendant must fail.

Even if that first element was made out, the evidence fails to establish that the first defendant misused the relevant processes in order to gain some collateral advantage. On the evidence before me, the only advantage the first defendant sought to gain was the protection of himself and the second defendant. The making of the interim order, the first order and the second order reflect the fact that in each case, a determination was made that the first defendant as in fear, and entitled to the relief sought.

The plaintiff’s case in this respect (at least in part) was that the collateral purpose for which the proceedings had been brought was a desire on the part of the first defendant to cause her harm. There is absolutely no evidence to support such a conclusion.

The plaintiff also asserted that the first defendant’s collateral purpose was to misuse the proceedings for the purpose of advancing his position in the Family Court proceedings. In this regard the plaintiff pointed, in particular, to the first defendant’s affidavit of 22 July 2018 which was filed in those proceedings. It is certainly the case that in the course of that affidavit [79] the first defendant made lengthy references to (inter alia) the various proceedings he had brought against the plaintiff in the Local Court. However, there is an obvious difference between referring to particular subject matter on the one hand, and using it for an improper purpose on the other. It is, in my view, telling that the written submissions of counsel for the first defendant in the Family Court proceedings [80] did not advance a single substantive submission in favour of the first defendant based on the proceedings brought by him against the plaintiff in the Local Court. That tends wholly against the proposition that the first defendant used the Local Court proceedings in some impermissible way. I am not satisfied that those proceedings were “used” by the first defendant at all in the Family Court proceedings, let alone used by him in some impermissible way.

Finally, there is simply no evidence which establishes that the first defendant was a party to any conspiracy, or that he was party to a fraud.

For all of these reasons, the plaintiff’s case against the first defendant fails.

On the evidence before me, although the second defendant was named in the various proceedings in the Local Court as a person in need of protection, and was a person for whose benefit the proceedings were brought (and orders made), she did not institute any proceedings at all. All of the proceedings were instituted by the first defendant. That, in my view, presents an insurmountable hurdle for the plaintiff in establishing a case against the second defendant.

Even if that conclusion is incorrect, and even if the second defendant were regarded as having instituted the proceedings in the Local Court against the plaintiff, for the reasons set out in relation to the first defendant I am not satisfied that the second defendant did so for any improper purpose.

Moreover, and bearing in mind that the second defendant was not a party to the proceedings between the plaintiff and the first defendant in the Family Court, and also bearing in mind the plaintiff’s articulation of her case in cross-examination, there is no evidence whatsoever that the second defendant misused the proceedings to obtain some collateral advantage.

Finally, my observations as to the lack of evidence of conspiracy or fraud in respect of the first defendant apply equally to the second defendant.

For all of these reasons, the plaintiff’s case against the second defendant fails.

The plaintiff’s case against the third defendant fails for a different reason. The third defendant was not a party to any of the proceedings brought by the first defendant against the plaintiff in the Local Court. The fact that the third defendant acted in a professional capacity as the first defendant’s solicitor could not make him responsible for any tortious conduct in which the first defendant may have been found to have engaged (but in which I have found he did not engage in any event). The tort of collateral abuse of process can only be committed by a person who is a party to the proceedings which are said to constitute the abuse, or in which the abuse is said to have occurred (in this case, the proceedings brought by the first defendant in the Local Court). It follows that the plaintiff’s case against the third defendant must fail. [81]

Shortly prior to publishing these reasons I was informed by the solicitor for the first defendant that the plaintiff was recently the subject of orders made pursuant to the Bankruptcy Act 1966 (Cth). In those circumstances, it is appropriate that a copy of this judgment be provided to her Trustee.

For the foregoing reasons I make the following orders: