Majak v Rose (No 5) [2017] NSWCA 238

Majak v Rose (No 5) [2017] NSWCA 238

The Notice of Motion was dismissed because the applicant did not identify any material misapprehension of fact or law in the previous judgment. The questions concerning the correction of the Local Court record by adding "Order 13" and standing to apply for variation of an ADVO had already been fully dealt with in the judgment sought to be set aside, and the applicant's affidavit and submissions sought to re-agitate determined issues or raise new matters, which is not a permissible basis for relief under UCPR r 36.16.

Jurisdiction
Australia
Judgment Date
28 September 2017
Procedural Posture
Notice of Motion Under R 36.16(3 A) of the Uniform Civil Procedure Rules 2005 (nsw) to Set Aside Orders Dismissing an Amended Summons for Judicial Review / On the Papers; Application to Reopen or Set Aside Judgment After Entry
Outcome
Notice of Motion dismissed with costs.
Legal Topics
['application to Reopen Judgment' 'ucpr 36.16' 'finality of Litigation' 'apprehended Domestic Violence Order' 'correction of Court Order Record' 'standing to Apply for Variation of Advo']
['practice and Procedure' 'judicial Review' 'domestic and Personal Violence Orders'] ['application to Reopen Judgment' 'ucpr 36.16' 'finality of Litigation' 'apprehended Domestic Violence Order' 'correction of Court Order Record' 'standing to Apply for Variation of Advo']

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Procedural Posture

Notice of Motion Under R 36.16(3 A) of the Uniform Civil Procedure Rules 2005 (nsw) to Set Aside Orders Dismissing an Amended Summons for Judicial Review / On the Papers; Application to Reopen or Set Aside Judgment After Entry

Legal Issues

  1. 1 ['Whether the Court should set aside the judgment in Majak v Rose (No 3) under UCPR r 36.16(3A).' 'Whether the applicant identified a misapprehension of fact or law by the Court sufficient to enliven the reopening jurisdiction.' 'Whether issues concerning the addition of "Order 13" and standing to apply for variation of an ADVO had already been determined.' "Whether the applicant's material impermissibly sought to re-agitate determined issues or raise new matters."]

Ratio Decidendi

The Notice of Motion was dismissed because the applicant did not identify any material misapprehension of fact or law in the previous judgment. The questions concerning the correction of the Local Court record by adding "Order 13" and standing to apply for variation of an ADVO had already been fully dealt with in the judgment sought to be set aside, and the applicant's affidavit and submissions sought to re-agitate determined issues or raise new matters, which is not a permissible basis for relief under UCPR r 36.16.

Court Disposition

Notice of Motion dismissed with costs.

Orders

  • ['Dismiss the Notice of Motion filed on 30 May 2017.' "The applicant to pay the third respondent's costs of the Notice of Motion."]