Viavattene v Morton and Ors

1. [1]

   This matter came before me on 4th December 2015 for Mr Viavattene to show cause why his appeal should not be dismissed as incompetent (see Viavattene v Morton [2015] NSWSC 1693 at [20] – [24]).

2. [2]

   On 13th November 2015 I had found that the notice of motion he was attempting to file seeking to institute contempt of court proceedings against each of the named defendants is a proceeding of a kind to which the order of the Court of Appeal in Viavattene v Attorney General (NSW) [2015] NSWCA 44 relates. I stayed the proceeding under s 8(7)(a) Vexatious Proceedings Act 2008 (NSW).

3. [3]

   The proceeding is a purported appeal from a decision of Magistrate O’Brien (as the Deputy-Chief Magistrate then was) of the Local Court made on 4th June 2013 refusing to make an order for the protection of Mr Viavattene and other members of his family under Crimes (Domestic and Personal Violence) Act 2007 (NSW) (CDPV Act). At [8] of my previous decision I briefly described the proceeding in these terms:

Mr Viavattene’s preliminary argument

1. [4]

   Mr Viavattene appeared in person. There was no appearance for any defendant when the matter was called.

2. [5]

   At the beginning of the hearing Mr Viavattene sought to hand up a notice of motion and affidavit dated 18 November 2015. I interpolate that he had previously attempted to “file” these documents by faxing, posting and emailing copies of them to my chambers. When received these documents were returned to him by post, unread and unopened. The email was deleted. I informed him a number of times during the course of argument that I had not given him leave to file his notice of motion in court and, in any event, documents must be filed in the registry not lodged with the judge’s chambers. Mr Viavattene relied on r 4.12 Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and argued that it allows for the filing of a document with an officer of the court and he says that a judge is an officer of the court.

3. [6]

   Neither of these contentions is correct. Neither myself nor my personal staff are “officers of the court” nor is my chambers “the registry” for the purpose of the rules (see Beecham (Australia) Pty Ltd v Roque Pty Ltd (1987) 11 NSWLR 1 at 10). In any event, r 4.12 deals with the lodgement of additional copies of originating process for sealing, not with the filing of documents. Rule 4.10 deals with the filing of documents generally. I set out the relevant parts:

4. [7]

   Nowhere is it provided that filing may be affected by faxing, posting or emailing copies to a judge’s chambers. Documents may only be filed as per the rules (leaving to one side, where permitted, the electronic filing of documents) in the registry or posted to the registry’s business or DX address. Judge’s chambers are not the registry, or its business or DX address. Rule 4.10 provides an administratively convenient method for the lodgement of documents with the court but these methods are non-exclusive. Where appropriate, a document can be filed another way with the concurrence of a judge who grants leave to do so: Beecham (Australia) Pty Ltd v Roque Pty Ltd at 10. It follows then that as no leave was given for filing in court, Mr Viavattene’s notice of motion and affidavit have not been filed. It is unnecessary to refer to them again in these reasons.

5. [8]

   I add that as this appeal is stayed under the vexatious proceedings legislation Mr Viavatenne must first obtain leave under s 16 of that Act before his motion may be instituted. Had the documents been lodged any officer of the court could refuse to accept them under r 4.10(5).

Mr Viavatenne’s show cause argument

1. [9]

   Turning now to the show cause question, Mr Viavattene submits that “it is all about [the] administrative process”. He says that as the defendants have failed to appear in court and have failed to provide a defence, which he says contravenes previous orders made by both Rothman J and Garling J he should be entitled to default judgment. He argues that the case has thereby moved beyond questions of competence of the appeal.

2. [10]

   The defendant’s failure to appear in court or provide a defence does not, in any way shape or form, affect the competency of his appeal or, in other words does not show cause as to why Mr Viavattene’s appeal should not be dismissed as incompetent. This is because, contrary to Mr Viavattene’s argument, a defendant in an appeal is not required to appear in court or file a defence under pain of losing by default without any consideration of the merits of the appeal. There is no provision for default judgment in Pt 50 UCPR dealing with appeals to this Court from, inter alia, the Local Court. Default judgment under the UCPR is available only in “proceedings commenced by statement of claim”: r 16.1.

3. [11]

   I asked Mr Viavattene whether he wished to address the question I had raised in my previous judgment (at [23]) about whether an appeal from the decision of Magistrate O’Brien had to be brought in the District Court of New South Wales under s 84 CDPV Act. His reply was somewhat confusing but seemed to be along the lines that that Act has no application to this appeal as he has appealed directly to the Supreme Court on an error of law being that the Magistrate took no regard of the Act (4.25T).

Decision on competence of the appeal

1. [12]

   In a recent decision, Application by Michael Bar-Mordecai [2015] NSWSC 1695, I set out in detail the relevant statutory provisions which govern an appeal from an AVO decision in the Local Court (at [19] – [22]):

2. [13]

   It follows from this analysis that this appeal has not been bought in conformity with the relevant statuory provisions. The Supreme Court is not empowered (putting to one side the Court’s original, supervisory jurisdiction not sought to be invoked here) under the express statutory provisions as set out above to entertain the appeal brought by Mr Viavattene.

3. [14]

   Moreover, the specific right of appeal conferred under the CDPV Act displaces in AVO cases the general appeal right in civil cases that Mr Viavattene has sought to invoke under s 39 Local Court Act 2007 (NSW). And similarly Mr Viavattene’s reliance on s 52 Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act) is misplaced as: first, s 84 incorporates Pt 3 not Pt 5 CAR Act; and secondly, he is not “a person who has been convicted or sentenced by the Local Court” to found an appeal under s 52, which he invokes.

4. [15]

   His reliance on each of ss 60, 62 and 68(a) Supreme Court Act 1970 (NSW) is also misplaced. These sections do not confer any right of appeal. Rather they are concerned predominately with the nature of the courts power to grant remedies in the exercise, principally, of its original jurisdiction as a court of judicature administering law and equity together.

5. [16]

   I would like to say finally, that I do have sympathy for Mr Viavattene’s frustration at the failure of the defendants to participate in the proceedings beyond filing a notice of appearance, not a submitting appearance, on behalf of the first and second defendants. Mr Viavattene argues the defendants are “showing contempt for the Supreme Court. They don’t even have the decency to turn up and show respect” to the court. There is substance in this complaint. The defendants have simply ignored the proceedings. Given that they have not filed submitting appearances they were obliged to comply with the Court’s orders and directions. However that may be, their failure to engage in these proceedings does not render the incompetent, competent. Accordingly, as Mr Viavattene has failed to show cause why his appeal should not be dismissed as incompetent I must dismiss it.

6. [17]

   My order is the appeal is dismissed as incompetent.