Pavelescu v Pisa[2021] QCA 167

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  The appellant filed two notices of appeal seeking to challenge different decisions.  The first was an appeal from a decision by Justice Callaghan in the Supreme Court on 10 June 2020.  The parties to that appeal (7426 of 2020) are Magistrate Dooley (first respondent) and Ms Pavelescu (second respondent).^[1]
2. [2]
   The second appeal (9109 of 2020) seeks to challenge an order made by Judge Kent QC in the District Court on 24 July 2020.
3. [3]
   In appeal 7426/20 the appellant filed an outline on 5 August 2020.  Nothing has been done since on his part.  Ms Pavelescu filed her outline of argument on 24 August 2020.  The other respondent (Magistrate Dooley) abides the order of the court.
4. [4]
   In appeal 9109/20 nothing has been done by the appellant since the notice of appeal was filed.
5. [5]
   In each appeal Ms Pavelescu applies to have the appeal dismissed for want of prosecution.  The first respondent in 7426/20 (Magistrate Dooley) abides the order of the court but submits that there should not be any adverse costs order made against her Honour.

Relevant chronology

6. [6]
   Consideration of the application is aided by a chronology applicable to both appeals.

   1. (a)
      8 July 2020 – notice of appeal in 7426/20;
   2. (b)
      13 July 2020 – Registrar’s letter to the appellant, giving dates for outlines and preparation of the record book;
   3. (c)
      15 July 2020 – letter from first respondent’s solicitor to the appellant; invitation to withdraw the appeal and notice given that indemnity costs would be sought;
   4. (d)
      29 July 2020 – email from the appellant advising about service of appeal;
   5. (e)
      5 August 2020 – appellant’s outline in 7426/20 filed; it seeks that the appeal be heard and determined without an oral hearing;
   6. (f)
      24 August 2020 – notice of appeal in 9109/20;
   7. (g)
      24 August 2020 – Ms Pavelescu’s outline of argument in 7426/20 filed;
   8. (h)
      13 November 2020 – respondent’s solicitor makes an enquiry to the Registrar about the status of the appeals;
   9. (i)
      17 November 2020 – advice from the registry as to both appeals; advise they are “non-compliant” and that there had been no correspondence from the appellant since 9 July 2020; registry advised that they had been informed the appellant “may be overseas”;
   10. (j)
       19 November 2020 – solicitors advise the registry that the appellant was either in the Netherlands or the Czech Republic and that there had been email activity with him of which the solicitor’s firm was aware;
   11. (k)
       20 November 2020 – email from the registry to the appellant (email address:  [email protected]); the appellant was advised that he had not progressed the appeals and that they were non-compliant; he was advised as to how he might dismiss the appeals if he was now overseas;
   12. (l)
       20 November 2020 – email from the appellant (email address: [email protected]) to the registry in respect of both appeals; the appellant advised that he had moved away from Australia on 26 August 2020 and “will not return to Australia”; he advised “I do not want to continue with any legal proceedings in Australia so please can you withdraw all my applications”; also advised that “I am not able to file any forms and I am not even able to read and understand any legal documents as I am in very bad psychosocial situation.  Please can you help me and withdraw all the matters as I am not able to do it because of my medical state.”;
   13. (m)
       1 December 2020 – email from the appellant (email address: [email protected]); he advised that he was “hoping that someone will look at my appeal and that someone will really decide the matter based on laws and not on misleading arguments provided by [the solicitor for Ms Pavelescu]; various allegations made about the case and the conduct of the solicitor; appellant advised that “I would like to ask, if you can’t help me to get a fair hearing, please withdraw the matter that [the solicitor] can’t misuse the position to create another cost order against me without even having hearing”;
   14. (n)
       3 December 2020 – email from the appellant (email address:  [email protected]); he advised that he did “not have an address in Australia” and asked that 7426/20 be decided without an oral hearing;
   15. (o)
       21 July 2021 – application in each appeal to dismiss for want of prosecution; each application sought costs on an indemnity basis;
   16. (p)
       22 July 2021 – service by email on the appellant at [email protected] resulted in an “undeliverable notification”; and
   17. (q)
       23 July 2021 – service by email on the appellant at [email protected] received a positive delivery notification.

Delay and non-compliance

7. [7]
   Whatever the position with the merits of the appeals, the fact is that nothing has been done in 7426/20 since the appellant’s outline was filed on 5 August 2020.  Within three weeks after that the appellant had left Australia and has since announced that he will not be returning.  As for appeal 9109/20, nothing has been done since the notice of appeal was filed.  That is the position notwithstanding the directions given by the registry for the preparation of each appeal and the registry’s advice to the appellant as to how he might dismiss the appeals if he did not wish to proceed with them.
8. [8]
   Whether it is for the reasons asserted in the appellant’s email of 1 December 2020, or not, the fact is that it is about a year since the appeals were filed and about a year since anything was done in respect of them.

The appellant’s position in respect of the appeals

9. [9]
   The appellant has given two statements about his position.  On 20 November 2020 he advised the registry that he intended to remain overseas and that he wished to “withdraw” his appeals.  On 1 December 2020 the appellant made a number of allegations complaining that the solicitor for Ms Pavelescu had abused court process and denied him a chance to get a fair hearing, but indicated that if the registry could not help him to get a fair hearing, he wanted to withdraw the matters.
10. [10]
    The allegations against the solicitor are mere assertions in an email.  They are not sworn to, nor are they reflected in any ground of appeal.  Though the appellant may not appreciate it, the way in which the registry is involved in giving him a fair hearing is by setting the steps under which the appeals are properly prepared and brought to a hearing in this Court.  The appellant’s email of 1 December 2020 really seeks some form of a hearing well short of that, and without the appellant’s involvement, failing which the appellant asked again that the matters be withdrawn.

Consideration

11. [11]
    On any view, there has been non-compliance with the Registrar’s directions and an unwillingness on the part of the appellant (for whatever reason) to progress either appeal.  Further, he has openly stated that he does not intend to return to Australia.  Of course, he does not need to be in Australia to progress the appeals, and he has sought that at least 7426/20 be heard on the papers.  However, his announcement of intention was also accompanied by a statement of his intention to withdraw the appeals.
12. [12]
    In my view, the appellant has plainly indicated his intention with respect to the appeals, namely that he does not intend to progress them any further.
13. [13]
    In all the circumstances it seems to me that the only possible result is that the appeals be dismissed for want of prosecution.
14. [14]
    As to the question of costs, the position is more difficult.  The applicant seeks her costs on the indemnity basis, contending that each appeal was conducted for an ulterior purpose, in a vindictive manner and without any reasonable prospect of success.  Reliance in that regard is place upon the decision of this Court in Amos v Monsour Legal Costs Pty Ltd.^[2]

Appeal 7426/20 – proceedings before Magistrate Dooley and Justice Callaghan

15. [15]
    The proceedings before Magistrate Dooley are the subject of 7426/20.  The short background is that there were two occasions when Magistrate Dooley dealt with an application for a domestic violence protection order against the appellant, on each occasion not actually hearing that application but adjourning it.  On the first occasion (3 April 2019) the adjournment was because the application had been brought ex parte and there was no evidence upon which the magistrate could act.  The application was adjourned to 15 April 2019, when the appellant was represented by a lawyer.  By that time a family report had been obtained and all parties considered that the matters the subject of real contention were matters that could only be dealt with in the Federal Circuit Court.  For that reason, essentially by agreement, the application was adjourned for a longer period to let the Federal Circuit Court proceedings commence.
16. [16]
    At some point the appellant applied to Justice Callaghan for an order of statutory review of Magistrate Dooley’s decisions.  Since there were no decisions, other than to adjourn the proceedings, not surprisingly the application was dismissed.  In relation to the orders made by Justice Callaghan on that application, a review of the notice of appeal and outline suggests that it is only the costs order that is challenged.
17. [17]
    I have reviewed the grounds of appeal for appeal number 7426/20, and the appellant’s outline of argument in that regard.  There is no necessity to go into detail on a ground by ground analysis.  The central contention was that the application to the magistrate was an abuse of process because it was outside the jurisdiction of the Magistrates Court and the magistrate failed to make a decision to transfer it to the Federal Circuit Court.  Those grounds were bound to fail because all the magistrate did was to adjourn the matter twice, on each occasion it being recognised that the real dispute was something within the jurisdiction of the Federal Circuit Court, and not the Magistrates Court.  The second adjournment was expressly so that proceedings could be instituted in the Federal Circuit Court.  There was therefore no occasion to make an order to transfer.
18. [18]
    Insofar as the order of Justice Callaghan is concerned, the appellant mistakes the difference between proceedings under the Domestic and Family Violence Protection Act 2012 (Qld) where costs are normally borne by the parties, and proceedings outside the scope of that Act, as the application for statutory review was, where that rule does not apply.  The application for statutory review having been refused, costs would normally follow the event.
19. [19]
    It follows that appeal 7426/20 was hopeless from the outset.

Appeal 9109/20 – proceedings before Magistrate McKenzie and Judge Kent QC

20. [20]
    Appeal 9109 of 2020 is concerned with a decision by Magistrate McKenzie who made a temporary protection order under the Domestic Violence and Family Protection Act.  That went on appeal to Judge Kent QC in the District Court.  The appeal is, of course, against the orders made by Judge Kent, rather than the decision of the magistrate.  That point seems to have been missed by the appellant given that eight of the 10 grounds of appeal are concerned with contended errors by the magistrate, rather than Judge Kent.
21. [21]
    Of the eight grounds of appeal that are concerned with Magistrate McKenzie, all but one are concerned with whether the magistrate acted outside his jurisdiction because the matter should have been transferred or heard in the Federal Circuit Court.  They all suffer from the fact that the magistrate was exercising power under the Domestic Violence and Family Protection Act and made an order under that Act.  That issue was not required to be sent to the Federal Circuit Court.  The appellant attempts to portray the proceedings before the magistrate as having “the predominant purpose of … [obtaining] parenting and financial orders in matrimonial proceedings”.  The magistrate dealt with one issue, which was within his jurisdiction.
22. [22]
    The remaining ground attacking the magistrate contends that the order should not have been made “as the court was not satisfied that the husband committed domestic violence against the wife”.  That ground need only be stated to understand that it is futile.  An order was made.
23. [23]
    Only two grounds are concerned with the proceedings in the District Court.  The first contends that the learned judge did not comply with a rule relating to service and an unknown practice direction.  That ground can be put to one side as having, self-evidently, no particular prospects of success.
24. [24]
    The remaining ground relates to the costs order made by the District Court judge.  By reference to several authorities the contention seems to be that the costs order should not have been made because the usual position relating to parties to a proceeding for a domestic violence protection order is that each party bears its own costs.  That may well apply to the application before the magistrate, but is hardly determinative when the matter is an appeal from that decision.  Moreover, the decision as to the costs order was inevitably one made in the discretion of the District Court judge.  The appellant faces the unpromising prospect of demonstrating that in a case where a domestic violence protection order was warranted, the failed appeal from that order should not have attracted an order for costs.
25. [25]
    As a consequence, it is my view that appeal 9109/20 was also attended by very poor prospects of success.
26. [26]
    An aggravating factor in appeal 9109/20, which is ultimately concerned with the making of a domestic violence protection order, is the fact that the appellant left Australia on 26 August 2020, five days after the appeal was lodged.  He did so with no intention of returning.  So much was announced by him on 20 November 2020.  Given that he left only five days after filing the notice of appeal, I would infer that he had decided to leave Australia at the time he filed the notice. That being so, it is difficult to see the institution of, and persistence with, the appeal as anything other than vexatious.
27. [27]
    In each appeal the principles warranting the award of costs on the indemnity basis are applicable.  The appeals involve claims that have no basis and should never have been made.^[3]  And, they attempt to advance points in wilful disregard of known facts or established law.^[4]  They warrant the conclusion that there are special or unusual features justifying such an order.^[5]
28. [28]
    In my view, the circumstances are such that the appellant should pay the second respondent’s costs in each appeal on the indemnity basis.  The first respondent in appeal 7426/20 has been vexed by a hopeless appeal and therefore is entitled to costs on the same basis.
29. [29]
    The orders are as follows:

1. 1.Appeal 7426 of 2020 is dismissed for want of prosecution.
2. 2.Appeal 9109 of 2020 is dismissed for want of prosecution.
3. 3.In each of appeal 7426 of 2020 and 9109 of 2020 the appellant pay the respondents’ costs on the indemnity basis.