Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Majak v Rose (No 6) [2017] NSWCA 262 Hearing dates: 16 October 2017 Date of orders: 16 October 2017 Decision date: 16 October 2017 Before: Payne JA Decision: The applicant's notice of motion dated 13 October 2017 is dismissed. Catchwords: CIVIL PROCEDURE – application for hearing date to be vacated Cases Cited: Majak v Rose (No 2) [2016] NSWCA 337 Majak v Rose (No 3) [2017] NSWCA 104 Majak v Rose (No 4) [2017] NSWCA 170 Majak v Rose (No 5) [2017] NSWCA 238 Majak v Rose [2016] NSWCA 278 R v Macdonald; R v Maitland (No 1) [2016] NSWSC 1940 Reliance Financial Services NSW Pty Ltd v Francesco Criniti & Ors [2008] NSWSC 1397 Category: Principal judgment Parties: Zofia Majak (Applicant) Alan Rose (Respondent) Representation: Solicitors: In Person (Applicant) R Byrnes (Respondent) File Number(s): 2017/00235558-1 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment – EX TEMPORE 1. PAYNE JA: By summons filed 2 August 2017, the applicant, Ms Zofia Majak, seeks to review: 1. the decision of Buscombe DCJ made on 5 July 2017 dismissing the applicant's appeal from the Local Court making an Apprehended Personal Violence Order against her; 2. the decision of Buscombe DCJ made on 4 July 2017 dismissing a notice of motion seeking leave to commence a private prosecution against the respondent; 3. the decision of Buscombe DCJ made on 4 August 2017 awarding costs in relation to the appeal proceedings; and 4. the decision of White JA made on 12 July 2017 referring the proceedings to the Registrar with a view to setting a hearing date for the balance of the notice of motion there under consideration. 1. On 14 August 2017, the applicant appeared before the Registrar of the Court seeking a hearing date for her review application concerning the orders made in the District Court (matters 1(1)-(3) above). The matter was set down for hearing on 27 October 2017. 2. At that time the applicant was self-represented in these proceedings, although she had secured representation from a Mr Hayes of the Victorian Bar in relation to Family Court proceedings involving the respondent no later than July 2017. 3. On 6 September 2017, the applicant amended the summons to include a challenge to the decision of White JA identified in paragraph 1(4) above. 4. By notice of motion filed 13 October 2017, the applicant seeks an order vacating the hearing date fixed for this matter. An order is sought that the hearing be adjourned to a later, unspecified, date. This matter came before me today in the referrals list. Evidence on the motion 1. The evidence on the motion comprised an affidavit affirmed by the applicant on 13 October 2017 and an affidavit of Mr Byrnes, solicitor, who appeared for the respondent, affirmed 16 October 2017. 2. In her affidavit the applicant states that her counsel of choice, Mr Hayes, is not available to appear on 27 October 2017. The applicant says that she will be severely disadvantaged if she is not able to secure Mr Hayes to appear as her counsel on 27 October 2017. She asks that the matter be adjourned to an unspecified date in November 2017 when she said, from the bar table, she believed Mr Hayes would be available. 3. The applicant informed me from the bar table that since filing the notice of motion she had secured a firm of solicitors, Mitry Lawyers, to appear for her in the present case. Ultimately the applicant's position was that she believed that Mitry Lawyers would be available to appear for her on 27 October 2017 but that the applicant had no confidence that a solicitor could adequately represent her in a case of this kind. 4. The respondent's evidence was that Mr Hayes had been briefed in related proceedings involving the applicant and respondent since at least July 2017 and that when the applicant had the present matter fixed for hearing, Mr Hayes was then retained in those separate proceedings by the applicant. The respondent's evidence also makes clear that the applicant has appeared on her own behalf before the Court of Appeal on a number of occasions. Submissions 1. From the bar table the applicant asserted that whilst she had borrowed funds and was in a position to pay Mr Hayes and her instructing solicitors, she had not sought alternative counsel as her case was too complex. The applicant stated that there was insufficient time for another barrister to understand the matter prior to 27 October 2017. The applicant submitted that it was in the interests of justice that she be represented by Mr Hayes specifically as this was a matter of considerable complexity and importance to her. She made that submission by reference to two decisions of the Supreme Court where the Court ordered a hearing date be adjourned: Reliance Financial Services NSW Pty Ltd v Francesco Criniti & Ors [2008] NSWSC 1397 per Brereton J at [6]; R v Macdonald; R v Maitland (No 1) [2016] NSWSC 1940 per Adamson J at [4]. 2. It was submitted that there was no prejudice to the respondent if the matter were adjourned. She submitted that security for costs lodged by her in Family Court proceedings provided sufficient protection to the respondent in the event that she was not successful in this Court. 3. The respondent opposed the adjournment application. It was submitted that the matter was set down at the urging of the applicant who at that time had retained Mr Hayes in separate proceedings. It was submitted that the applicant was, although self-represented, an experienced litigant who had appeared in the Court of Appeal on numerous occasions in the past. It was submitted that the respondent suffered prejudice in any adjournment as costs orders in its favour made in lower courts were the subject of a stay until the present matter was determined. Consideration 1. The application for an adjournment must be dismissed. My reasons are as follows. 2. I have considered the decisions to which I was referred in Criniti and R v Macdonald; R v Maitland. Each decision is distinguishable. In Criniti a mistake was made by one of the parties about a date for hearing a motion. No such mistake was made here. The principles in R v Macdonald; R v Maitland are addressed to a criminal trial and the alleged impecuniosity of a defendant. Those principles do not apply in the present case. 3. This is a case where a hearing has been fixed for 27 October 2017. The matter was fixed for that date on the application of the applicant. It is clear that Mr Hayes had been engaged in other proceedings on behalf of the applicant and was so engaged prior to this matter being set down on 14 August 2017. Very properly, the applicant did not assert that Mr Hayes was, even now, briefed to appear for her in these proceedings but only that he had indicated that if instructing solicitors were engaged, he could appear in November 2017. 4. The applicant did not suggest any particular date that Mr Hayes would be available, merely that his diary was more accommodating in November 2017. Whilst it is regrettable that Mr Hayes is not able to appear for the applicant on 27 October 2017, there is sufficient time before that date for new counsel to be instructed. 5. The applicant also has available to her the services of firm of solicitors. The applicant submits that she now has sufficient funds to pay for counsel and solicitors to appear on her behalf. Whilst the applicant does not wish to be represented by a solicitor on 27 October, I am satisfied that there is sufficient time before 27 October for the applicant to work together with her solicitors to obtain alternative counsel. 6. If the matter were to be adjourned now, it is not merely a matter of prejudice to the parties but, rather, the public interest in the efficient dispatch of the business of the Court of Appeal which will be affected. Other litigants have been forced to wait by reason of this matter being fixed on 27 October 2017. Those cases will again be delayed if the matter is adjourned. It is in the public interest that these proceedings go ahead on the date fixed. 7. It is also relevant to the exercise of my discretion that in the recent past the applicant has appeared for herself on a number of occasions in the Court of Appeal: Majak v Rose [2016] NSWCA 278; Majak v Rose (No 2) [2016] NSWCA 337; Majak v Rose (No 3) [2017] NSWCA 104; Majak v Rose (No 4) [2017] NSWCA 170; Majak v Rose (No 5) [2017] NSWCA 238. 8. Finally, there is some evidence of prejudice to the respondent if an adjournment were granted, although it is of limited weight, as it related to costs. Conclusion and order 1. For these reasons, the application for an adjournment is refused. The order of the Court is: 1. The applicant's notice of motion dated 13 October 2017 is dismissed. Amendments 21 March 2019 - Typographical correction in [5] 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: 21 March 2019