Viavattene v Attorney General (NSW)

1. [1]

   BEAZLEY P: I have had the advantage of reading in draft the reasons of Leeming JA. I agree with his Honour’s reasons and the orders he proposes. I have also had the opportunity of reading the additional remarks of Basten JA.

2. [2]

   Vexatious proceedings are defined in the Vexatious Proceedings Act 2008 (NSW) to include, relevantly, “proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or to achieve another wrongful purpose”: s 6(d).

3. [3]

   There are at least two first instance decisions in which para (d) has been construed as not requiring the court to determine whether the defendant in proceedings under the Act subjectively intended to act in such a way as to “harass or annoy, cause delay or detriment, or to achieve another wrongful purpose”: see Pascoe v Liprini [2011] NSWSC 1484 at [10] per Adamson J; Attorney-General v Tareq Altaranesi [2013] NSWSC 63 at [20] per Slattery J.

4. [4]

   Basten JA, at [22], has raised a question whether this is a correct construction of s 6(d). In particular, his Honour has indicated that the elements of “harass and annoy” in s 6(d) would appear to require that subjective intent of the defendant to “harass and annoy” be established. I do not consider that this is necessarily the correct construction of s 6(d). However, as his Honour states, if an intentional element is involved, intention may be inferred from the objective facts. I would only add that there may also be a question whether the descriptor in s 6(d) that describes proceedings conducted in a way so as to “achieve another wrongful purpose” requires an intentional element.

5. [5]

   However, the construction of s 6(d) was not raised on the appeal and, therefore, as Basten JA points out, this is not the appropriate occasion to determine it.

6. [6]

   BASTEN JA: On 27 March 2014 orders were made in the Common Law Division prohibiting the appellant from instituting proceedings in New South Wales, without leave of the Court. Further, a stay was imposed on all proceedings already instituted by the appellant and pending in New South Wales courts. The appellant was ordered to pay the Attorney General’s costs. He appeals against all of those orders.

7. [7]

   For the reasons given by Leeming JA, the appeal should be allowed and the more limited order proposed by Leeming JA should be made. There is one further procedural matter and two matters of statutory construction which warrant consideration.

Service of evidence

1. [8]

   For the reasons explained by Leeming JA, the application for a vexatious proceedings order did not miscarry because the appellant had not been properly served with the originating process. However, there was a separate issue with respect to the evidence. When, on 26 September 2013, the date was fixed by Button J for hearing the proceedings, the appellant was in fact in custody at Grafton Correctional Centre. Although those representing the Attorney were aware of his custody, they neither sought to arrange an audio-visual link nor take any other steps to assist him to be present on 26 September 2013. Button J remarked at the commencement of the hearing that it was “not his fault that he is not here, at least that can be said”: Tcpt, 26/09/13, p 1. Counsel responded:

2. [9]

   When the Court indicated unwillingness to proceed ex parte “at least until further inquiries have been made” counsel for the Attorney, having sought instructions, said that the Attorney “does seek to have the matter dealt with today, if possible”: Tcpt, p 2. Ultimately an audio-visual link was established and the matter was adjourned to 20 March 2014. When the matter was called on that day the appellant did not appear. There was a question as to whether he had been properly served with the originating process and with a copy of the evidence and the Attorney’s submissions.

3. [10]

   The trial judge noted at [4] that on 31 October 2012 the evidence and submissions had been sent to the appellant at Grafton Correctional Centre and returned a month later, with a note that the appellant was no longer in custody. (The year was incorrectly noted: the material was sent on 31 October 2013.) The material was then sent to a post office box in Murwillumbah but again was returned unclaimed.

4. [11]

   The trial judge concluded at [6] that the appellant was “clearly aware” of the listing before him on 20 March 2014. However, he made no finding as to whether copies of the voluminous materials to be tendered by the Attorney had been served on the appellant nor, if reasonable steps had been taken in that regard, whether the appellant was aware of the material being available but had refused to accept it. Earlier attempts to serve the material had also proved unsuccessful, as a result of which a senior solicitor acting for the Attorney had written to the appellant drawing his attention to Uniform Civil Procedure Rules 2005 (NSW), r 10.16(1) which provides that where a document is to be served on a person in default of appearance, “the filing of the document is taken to have the same effect as service of the document on the person unless the court orders otherwise.” On 29 April 2013 the Crown Solicitor had written to the appellant advising him of that rule, although, unfortunately, misstating it so that the advice read that if a document is to be served upon a person in default of an appearance, “the filing and service of the document is taken to have the same effect as service of the document” (emphasis added). The inclusion of the italicised words misstated the rule and made nonsense of the advice. The error appears not to have been corrected.

5. [12]

   If it be necessary, I would infer that the appellant had knowledge of the existence of material which was sought to be served on him by the Crown Solicitor and had deliberately declined to accept it. Thus, to the extent that he was ill-informed as to the nature of the case sought to be made against him, he was the author of his own misfortune. Procedural fairness did not require that the proceedings be adjourned for this reason.

Definition of vexatious proceedings

1. [13]

   Relevantly for present purposes, the jurisdiction of the Court to make a vexatious proceedings order in relation to the appellant was satisfied only if he had “frequently instituted or conducted vexatious proceedings in Australia”: Vexatious Proceedings Act 2008 (NSW), s 8(1)(a). The phrase “vexatious proceedings” is defined in s 6 in the following terms:

2. [14]

   Although the definition is not expressed to be exclusive, for reasons considered under the next heading, one might expect it to be rare for a court to treat proceedings as vexatious proceedings unless they could fairly be characterised as falling under one of the descriptions in s 6. Secondly, as has been remarked in a number of cases, the separate paragraphs are not to be construed as independent and self-contained categories. For example, most proceeding which would fall within pars (b)-(d) would constitute an abuse of process for the purposes of par (a). If for no other reason, one would be cautious before identifying significant differences in the approach to different paragraphs based on minor changes in wording from one paragraph to another.

3. [15]

   Unfortunately, such an approach is revealed in some of the authorities. Thus in Pascoe v Liprini [2011] NSWSC 1484 the Court stated at [10]:

4. [16]

   One difficulty with this passage is that the most substantial difference between pars (b) and (d) is that the former deals with the institution of proceedings and the latter with their conduct. The fact that par (d) is not concerned with subjective intention (if that be the case) will not, in most cases, have the relieving effect identified.

5. [17]

   More importantly, it is not easy to see why a concern with subjective intention is to be inferred from the words of par (b), but rejected by reference to the words of par (d). There are indeed differences in the language used (other than the operative verb), but those differences are unlikely to be material in the sense identified. First, par (b) speaks of proceedings “instituted to” harass or annoy etc; par (d) speaks of proceedings conducted “in a way so as to” harass, annoy, etc. Secondly, the four identified elements are grouped in two pairs in par (b), but treated as a set in par (d). Why the drafter adopted these variations is unclear, but no change in meaning should be inferred. Thirdly, the final catchall phrase is expressed in par (b) as being “for another wrongful purpose” and in par (d), picking up the continuation of the words “so as to”, continues “achieve another wrongful purpose.” Again, the variation in language is unexplained but immaterial.

6. [18]

   Once it is recognised that the only significant difference between the two paragraphs is that the former is dealing with the institution of proceedings and the latter their conduct, to treat one as requiring a subjective intention and the other as an objective effect is to impose a distinction which the language does not bear and a purposive approach would not support. The point may be illustrated by the discussion of abuse of process in Williams v Spautz [1992] HCA 34; 174 CLR 509. The judgments in that case are littered with references to proceedings being “instituted and maintained for an improper purpose” (see, eg, p 521 (Mason CJ, Dawson, Toohey and McHugh JJ)). Although it may be necessary to distinguish between a plaintiff’s intention and motives (see, eg, pp 534-535 (Brennan J)), the key is to identify a subjective “purpose” that is “foreign to the nature of the process”: Brennan J at p 533, quoting Isaacs J in Dowling v Colonial Mutual Life Assurance Society Ltd [1915] HCA 56; 20 CLR 509 at 522. The words “wrongful purpose” in both pars (b) and (d) include the subjective element of improper purpose. Similarly, the language of “harass” and “annoy” each suggest the possibility of a purpose other than that for which the proceedings are designed, although, again, it may be necessary to distinguish an entirely properly purpose pursued with a malicious motive, from an improper purpose. It is at least arguable that proceedings used for an entirely proper purpose will not be vexatious, whatever the motive of the moving party (or the opposing party).

7. [19]

   On the other hand, whether pars (b) and (d) would be satisfied by an objectively demonstrated outcome, absent any improper purpose, is less clear. If one takes the words “cause delay or detriment” in isolation, such a construction is open; however, read as part of a composite set of concepts, apparently characterised by the phrase “wrongful purpose”, mere objectively determined effects or consequences may not be sufficient. (A different conclusion would be available with respect to par (c).)

8. [20]

   It is not necessary to determine these issues in the present case, nor is it desirable because they were not fully addressed in argument. However, the reasoning in Pascoe v Liprini set out above is not in this respect persuasive.

9. [21]

   An approach similar to that adopted in Pascoe v Liprini was followed in Attorney-General v Tareq Altaranesi [2013] NSWSC 63, the Court stating at [20]:

10. [22]

    In my view, these cases should not be followed without further careful consideration. The issue will not be critical unless it cannot be said of particular proceedings that they were “instituted or pursued without reasonable ground”, which would appear to be an objective test, as set out in par (c). It must also be the case that pars (b) and (d) are critical only when the proceedings are not otherwise identified as an abuse of process within par (a). However, if none of the other paragraphs is satisfied, arguably par (d) is not satisfied when a party has no subjective intention to cause delay or detriment, even though, viewed objectively, that may be the consequence of the way the proceedings were conducted. (The elements of harass or annoy imply an intentional element.) Of course, the objective facts may form the basis of an inferred intention.

11. [23]

    Further, before determining the scope of these provisions, it may be thought necessary to give consideration to Pt 6, Div 1 of the Civil Procedure Act 2005 (NSW), which imposes obligations on both litigants and their lawyers with respect to the “overriding purpose” identified in s 56ff.

Conduct in criminal proceedings

1. [24]

   As Leeming JA notes at [78], there is a real issue as to whether and how the conduct of criminal proceedings may fall within the scope of the concept of “vexatious proceedings”. Although the language of the definition of “proceedings” in s 4 is wide enough to include criminal trials and “complaint”, the language might not necessarily be understood or construed to apply to criminal proceedings were it not for the express reference to criminal proceedings in s 5(1)(c) and (d). In par (c) there is a textual justification supporting the limitation of its operation to criminal proceedings brought by the person said to be vexatious, by way of private prosecution. However, a similar limitation is not so readily found in the language of par (d).

2. [25]

   There is, as Leeming JA notes, a principle of construction sometimes (unhelpfully) referred to as the principle of legality and sometimes referred to as the clear statement rule: Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7 at [67] (Gageler J). As explained by Gageler and Keane JJ in Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196 at [313]:

3. [26]

   It may be that, in a case such as the present, steps taken by a defendant in the course of criminal proceedings brought against him or her for an alleged offence should not be identified as falling within the term “institute” proceedings for the purpose of an application under the Vexatious Proceedings Act. Again, however, that is a matter which need not be resolved in the present case.

4. [27]

   LEEMING JA: On the application of the Attorney General, orders were made, in the absence of Mr Viavattene, pursuant to s 8(7)(a) and (b) of the Vexatious Proceedings Act 2008 (NSW) (VP Act) prohibiting him from instituting proceedings in New South Wales without leave, and staying all pending proceedings instituted by him. Mr Viavattene has appeared for himself on his appeal from those orders. His appeal raises 18 grounds, most of which are meritless. Indeed, grounds 1-14 repeat most of the grounds of review specified in s 5(1) and (2) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), and in the same order. It is unnecessary to address those grounds, and the voluminous materials served by Mr Viavattene in support, because when the appeal was heard the Attorney conceded there was error authorising this Court to intervene. It should be said immediately that the error was attributable to the way in which the Attorney’s case had been advanced before the primary judge.

5. [28]

   For the reasons given below, the orders made should be set aside, and a more limited order made. Mr Viavattene will not be permitted, without leave, to contest something which has already been determined, repeatedly and at the appellate level, namely, that an access road which had formerly crossed his and his wife’s property was realigned, on 11 November 2010, and no longer crosses his and his wife’s property. There is presently, so far as the evidence discloses, no basis for any broader order against him.

Nature of this appeal

1. [29]

   An appeal lies, pursuant to s 101 of the Supreme Court Act, from the orders made by the primary judge. The appeal is by way of rehearing, in accordance with s 75A(5) and (6). This Court proceeded on that basis in Martin v Attorney General for the State of New South Wales [2014] NSWCA 189: see at [23]. Subject to s 75A(7) and (8), fresh evidence may be adduced.

2. [30]

   Questions could arise in a case such as this as to whether leave is required and, if so, the nature of that leave. There are potentially overlapping requirements for leave under s 101(2) of the Supreme Court Act, under s 14 of the VP Act, and (in the case where the applicant is in custody having been convicted of a serious indictable offence), under the Felons (Civil Proceedings) Act 1981 (NSW). Those questions are not free from complexity: see Potier v Attorney General in and for the State of New South Wales [2014] NSWCA 256 at [2]-[5] and Viavattene v Attorney General of New South Wales [2014] NSWCA 218 at [2]-[4]. Questions concerning compliance with other obligations under the VP Act, notably, ss 14, 15 and 16 may also arise. None of those questions arise in this appeal, for there has been an extension of time, a grant of leave to appeal, and a waiver of the obligation under s 14 if it be applicable: Viavattene v Attorney General of New South Wales [2014] NSWCA 218.

A threshold issue: service

1. [31]

   Mr Viavattene did not appear before the primary judge. He maintained on appeal that he had not been served. I cannot accept his submission that the appeal should be allowed because of ineffective service.

2. [32]

   It could not seriously be contended that Mr Viavattene was unaware of the application and the material on which the Attorney relied and the hearing date, which was adjourned on his application on 26 September 2013, to the following March. On 26 September 2013, Mr Viavattene was in Grafton Correctional Centre; the adjournment to March 2014 was to a date after the expiry of the sentence he was serving.

3. [33]

   Throughout the relatively lengthy hearing on 26 September 2013, Mr Viavattene maintained that he had not been formally served. Nevertheless, he applied to the judge (Button J) to disqualify himself (which was refused). The hearing included this exchange:

4. [34]

   Ultimately, orders were made by consent adjourning the hearing, listing the proceeding for mention on 24 October 2013, and reserving costs. On 24 October 2013, Mr Viavattene again appeared by videolink (he had been granted bail, but subject to conditions with which he had not complied). He claimed that he had not been served, to which the solicitor appearing for the Attorney-General said that he was personally served in the cells underneath Lismore Police Station and the Registrar said that there was a photocopy of an affidavit of service dated 18 October at Lismore Police Station.

5. [35]

   When the matter was heard by the primary judge, on 20 March 2014, Mr Viavattene did not appear. The primary judge was taken to material demonstrating his knowledge of the proceedings and that they had been fixed, on his application, for final hearing. However, the affidavit demonstrating personal service of the originating process was not read. The Attorney sought, if necessary, to read that affidavit as fresh evidence in the appeal.

6. [36]

   The Attorney contended that by Mr Viavattene appearing, applying for Button J to disqualify himself and applying for an adjournment, granted on the basis that it would be necessary for him to appear and advance his arguments, he must be taken to have waived his objection to service.

7. [37]

   Mr Viavattene seems never to have filed a notice of appearance. Nevertheless, whilst maintaining his objection to service, he was permitted to make applications (unsuccessfully, to disqualify Button J; successfully, for an adjournment), although expressly maintaining his entitlement to challenge effective service of the originating process.

8. [38]

   It will be seen that there was a measure of procedural informality which took place. For the most part, that operated favourably to Mr Viavattene, permitting him to be heard and to make applications whilst he maintained his stance that he had not been served. The primary judge directed himself to whether Mr Viavattene had notice of the proceedings. In circumstances where on numerous occasions (see below) Mr Viavattene had commenced proceedings, or had been properly served but had not appeared when the matter was heard, that was an understandable course to take. It is regrettable that the affidavit of personal service was not read, but its contents had been made known to Mr Viavattene, and no contrary evidence was adduced by him.

9. [39]

   Further, there could be no doubt that Mr Viavattene was before the Court when the hearing date was allocated, at a date which was determined by reference to his release from custody. The Attorney should be given leave to read the affidavit of service, as a result of which it should be concluded that Mr Viavattene was validly served.

The reasons of the primary judge

1. [40]

   The primary judge delivered a judgment of 173 paragraphs occupying 41 pages promptly, six days after the hearing. Most of the judgment summarised the proceedings in which Mr Viavattene had been involved; I return to this below. His Honour then reproduced the legislation, the Attorney’s submissions and the applicable principles, in a way which was uncontroversial. His Honour then concluded that “[g]iven the number of [proceedings between 2011 and 2013] I am satisfied that such proceedings have been brought or conducted frequently within the meaning of s 8(1)(a)”: at [159], and that he was “satisfied that the majority of those proceedings” was vexatious and that the discretion to make orders should be exercised: at [160].

2. [41]

   His Honour gave five reasons for those conclusions at [162]-[166]. The first was that there was a “clear unwillingness” on the part of Mr Viavattene to accept the determination that the access track no longer lay across his land. This conclusion is sound, and sustains the narrower order which I propose. The second was that there was said to be a “particular pattern of behaviour in the conduct of various proceedings”, including repeatedly seeking adjournments, making allegations of bias and other impropriety, failing to appear at hearings, making applications for annulment and failing to appear on the hearing of those applications. The third was that some of the proceedings constituted an abuse of process. The fourth was the making of unfounded allegations of impropriety on the part of judicial officers. The fifth was that two magistrates had described Mr Viavattene as “vexatious” or his applications as “frivolous”.

3. [42]

   Although he had been taken to what had been said in Attorney-General v Michael [2005] WASC 203 at [148] to the effect that the court should consider each existing proceedings and whether or not it should be stayed, his Honour then made a blanket order. His Honour relied on the fact that Mr Viavattene could have appeared and made submissions as to any of the pending proceedings, but chose not to do so.

4. [43]

   During the appeal, counsel for the Attorney obtained instructions to concede error. The concession was that:

5. [44]

   In order to understand the Attorney’s concession, it is necessary to explain the litigation, involving Mr Viavattene, and what was said by his Honour describing it and summarising it.

6. [45]

   Paragraphs [21]-[119] of the reasons of the primary judge described 21 Local Court proceedings. The description followed the format of the Attorney’s affidavit evidence and chronology. It is important to observe three points at the outset.

7. [46]

   First, most of the 21 proceedings were not commenced by Mr or Mrs Viavattene.

8. [47]

   Secondly, many are closely related. For example, the “first Local Court proceeding” is an application by the police for an AVO, the “third Local Court” proceeding is a prosecution for contravening the same AVO, the “fifth Local Court proceeding” is a prosecution against Mr Viavattene for common assault, based on the events which gave rise to the AVO, and the “eighth Local Court proceeding” was an application for an AVO by Mr and Mrs Viavattene against one of the persons protected by the existing AVO, arising out of the same events.

9. [48]

   Thirdly, these paragraphs merely give a neutral description of the proceedings; they do not attempt to answer the questions posed by ss 5, 6 and 8(1) of the VP Act.

10. [49]

    In light of the fact that the Court must be satisfied that “the person has frequently instituted or conducted vexatious proceedings in Australia”, the interrelationship between proceedings which may in form amount to separate files with separate file numbers in the same court, is a matter of importance. The issue posed by the statutory term “frequently” is not to be assessed merely by an arithmetic calculation.

11. [50]

    A fair description of the 1st – 14th local court proceedings is that in the period between 3 November 2010 and 20 April 2011, some 14 separately numbered proceedings were commenced in the Local Court. All arose out of Mr and Mrs Viavattene’s claim that they were entitled to exclusive possession of the whole of their land, including the access road notwithstanding the realignment which took place on 11 November 2010. Five of those proceedings (the 2nd, 8th, 9th, 10th and 13th) were applications for AVOs brought by Mr and Mrs Viavattene. The remaining nine related to an application for an AVO against Mr Viavattene, and subsequent prosecutions for contravention of that AVO (and its successors) and for common assault, larceny and malicious damage and resisting an officer in the execution of his duty, all arising out of the same factual substratum. The litigation had these common features.

12. [51]

    Mr Viavattene failed to appear, for the most part, when he was seeking AVOs and when orders were sought against him. He did not appear when his application for AVOs were heard and those applications were dismissed. In relation to the proceedings brought against him, he did not appear and was convicted in his absence. In most cases, he applied to annul the conviction, and did not appear at the hearing of the annulment application (each annulment application was listed for hearing on 3 August 2011). The applications were dismissed in his absence. Mr Viavattene appealed to the District Court. The evidence did not disclose how the District Court appeals were resolved.

13. [52]

    The 15th – 21st Local Court proceedings may fairly be summarised as follows. Between 24 December 2012 and 17 May 2013, Mr Viavattene sought to apply for or vary AVOs against Mr Morton, his partner Ms Birch, Mr Nicholson, and Mr Cheetham. Those people were neighbours who used the (re-aligned) access road. Again there was a pattern of Mr Viavattene not appearing and the applications being dismissed. Again, the subject matter of those applications concerned Mr Viavattene’s claim that people were trespassing on his land.

14. [53]

    Following the commencement of the first 14 Local Court proceedings, Mr Viavattene commenced proceedings against Mr Morton and Ms Birch in the Supreme Court, seeking injunctive relief, and ultimately damages of $130,690 and “economic and non-economic compensation” of $1.5 million. In that litigation, the defendants served the report of a surveyor which attached a detailed survey of the access way, embankment and edge of the road following a survey made on 27 June 2011, which concluded that the realigned gravel track did not encroach upon Lot 2, the Viavattene’s land. There was no contradicting expert evidence. On 19 July 2011, there was a hearing before Davies J, who noted the absence of contrary evidence and the submissions on behalf of Mr and Mrs Viavattene that the survey had not been properly conducted but concluded that:

15. [54]

    On 19 and 21 September 2011, the matter came before Latham J on the defendant’s application for, inter alia, summary dismissal and security for costs. Her Honour struck out the statement of claim but was not persuaded that the proceedings should be dismissed as vexatious, disclosing no reasonable cause of action or constituting an abuse of process, but considered that there were “compelling reasons” why there should be an order for security of costs, notwithstanding the claimed impecuniosity of Mr and Mrs Viavattene. Her Honour required Mr and Mrs Viavattene to provide security for costs in the amount of $50,000 on or before 11 November 2011, with the proceedings being dismissed if security were not provided: see orders 2 and 4 made on 22 September 2011. On 3 November 2011, Mr and Mrs Viavattene purported to appeal from the orders made by Davies J and Latham J. That appeal (or, more accurately, application for leave to appeal) was subsequently discontinued.

16. [55]

    Tweed Shire Council served on Mr Viavattene a penalty notice alleging infringement of cl 11(1)(b) of the Roads Regulation 2008, and subsequently other infringement and penalty notices. Ultimately, (after a series of applications which need not be recounted) in December 2011, Mr Viavattene was convicted in his absence. His application for annulment was listed for hearing on 8 February 2012, when he did not appear and it was dismissed. So too was a further annulment application made in 2013. Mr Viavattene filed a summons in the Supreme Court seeking leave to appeal from the convictions and penalties. By a reserved judgment, Barr AJ concluded that Mr Viavattene had made out a defence in relation to the first and second infringement notices, before the road was realigned: Viavattene v Tweed Shire Council [2013] NSWSC 838 at [40]-[41]. His Honour referred to the affidavit of Mr Green, noted that there was no expert evidence in opposition to it, recorded Mr Viavattene’s submission that it was false, which “was a claim made repeatedly and I found it of no assistance”: at [39], and concluded:

17. [56]

    Mr Viavattene sought leave to appeal. On 19 September 2013, this Court granted an extension of time and granted limited leave, but otherwise refused leave to appeal, saying:

18. [57]

    On 1 June 2011, Mr Viavattene commenced proceedings in the Supreme Court of Queensland against the State of Queensland seeking damages for “Economic and non-economic Compensation of $900 million”, later amended to $5 million. The claim arose out of various employment contracts in Queensland public schools, as a teacher. The original statement of claim was struck out by reserved judgment given on 18 August 2011, the amended statement of claim was struck out by ex tempore judgment given on 19 December 2011.

19. [58]

    The remaining two proceedings relied upon by the Attorney General may be addressed very concisely, because they appeared to play no part in the assessment by the primary judge, and no reliance was placed on them on appeal. On 8 February 2010, Mr and Mrs Viavattene lodged an application in the Consumer, Trader and Tenancy Tribunal (as it then was) as tenants. The landlord lodged a cross-application. The CTTT’s decision, in September 2010, gave a measure of success to both parties. Secondly, in June 2012, Mr Viavattene commenced proceedings in Fair Work Australia for unfair dismissal against HealthCare Australia. Following a series of adjournments, the matter was set down for hearing on 31 January 2013. There was no appearance by Mr Viavattene, who was unable to be contacted by telephone. The application was dismissed on 4 February 2013: Viavattene v HealthCare Australia [2013] FWC 756, and leave to appeal was refused on 24 April 2013: Viavattene v HealthCare Australia [2013] FWCFB 2532.

The VP Act

1. [59]

   Subsection 8(1) of the VP Act empowers a court to make an order if:

2. [60]

   Subsection 8(7) empowers the Supreme Court to make:

3. [61]

   Those provisions must be read with the definitions in ss 5 and 6, which are as follows:

4. [62]

   Those powers do not limit or affect this Court's inherent jurisdiction to restrict vexatious proceedings: VP Act, s 7.

Errors in the decision of the primary judge

1. [63]

   As noted above, the primary judge identified five reasons which satisfied him that there was power to make an order. The first of those reasons was sound, but did not warrant the making of an order extending beyond litigation involving the claim that the (realigned) access road still passed over his and his wife’s land. The fourth and fifth matters were relevant, but of relatively slight weight, and again, by themselves or in conjunction with the first, would not warrant making an order going beyond litigation involving Mr Viavattene’s refusal to accept the efficacy of the road realignment. The Attorney’s concession was directed to the second and third of those reasons, which were as follows.

2. [64]

   The Attorney’s concession was properly made. The paragraphs disclose the following difficulties.

3. [65]

   The first element of the “particular pattern of behaviour” constituting the second reason is “repeatedly seeking adjournments”. Six examples are given. The first example was Mr Viavattene’s application to adjourn pending proceedings in the Local Court until after the Supreme Court hearing (3 months later). The second was an application for an adjournment and disqualification made by a solicitor appearing for Mr Viavattene. This is in a different category from all the others. The third, fourth and fifth involve a single hearing, on 8 June 2011, whose adjournment was the subject of two emails on the previous day and one that morning. The sixth was a request for a stay pending the resolution of a request to state a case to the Court of Criminal Appeal.

4. [66]

   What is more, all save the sixth were applications for adjournments of criminal proceedings brought against Mr Viavattene. The sixth was an application to adjourn an appeal from conviction brought by Mr Viavattene.

5. [67]

   The primary judge discerned a pattern, but in order to address whether the conduct was vexatious, it was necessary to have regard in more detail to the circumstances in which the applications were made. The adjournments were not, as a matter of substance, so numerous as the primary judge recounted. And, more importantly, an adjournment sought by an accused is very different from an adjournment sought by a civil plaintiff.

6. [68]

   As for the second element, it is regrettable that Mr Viavattene, no differently from many litigants who are unrepresented and unsuccessful, far too readily assumed and alleged that the reason for his lack of success was bias. Even so, four allegations of bias over a three year period, even if wholly unfounded, do not provide significant support for satisfaction of the criteria imposed by the VP Act.

7. [69]

   As for the third element, 12 examples of Mr Viavattene failing to appear are given. There is a deal of double-counting, which once again derives from the way in which the Local Court proceedings were identified by file number in the evidence provided to the primary judge. Two (the 5th and 10th) are the same occasion, 9 June 2011; another two (the 4th and 6th) are also the same occasion, 15 June 2011; three (the 7th, 8th and 9th) are the same occasion, 10 June 2011, and two others (the 11th and 12th) are the same occasion, 27 March 2013. In other words, more than half of the twelve involved Mr Viavattene not appearing in the Local Court on three occasions on 9, 10 and 15 June 2011. That occurred in circumstances where he had commenced proceedings in the Supreme Court seeking interlocutory relief. Of the balance, Mr Viavattene appeared on one occasion by a solicitor, who sought leave to withdraw.

8. [70]

   As for the fourth element, which comprises nine examples where Mr Viavattene failed to appear on the hearing of his applications for annulment, all nine refer to a single day, 3 August 2011, when all nine applications were listed for hearing. What is more, there was a further appeal from at least some of the orders dismissing the proceedings, and the result of that appeal was not disclosed on the material put forward by the Attorney.

9. [71]

   When those matters are considered, it may readily be seen that the reasons reiterate the error in the determination of “frequently” which may be seen in how the Local Court proceedings were described in the evidence. They also disclose error in the failing to consider whether Mr Viavattene was the moving party, or was being prosecuted for a crime.

10. [72]

    In relation to the third reason, it was open to find that some of the proceedings commenced by Mr Viavattene were vexatious, as per subparagraphs (i) and (ii). The criticisms in the balance are uncalled for. Persons are not to be made vexatious because a husband and wife, without legal assistance, file a “joint affidavit” or apply to join the councillors in a claim against the council. Moreover, although complaint was made of discontinuing the appeal from, inter alia, the orders made by Latham J, counsel for the Attorney made it very clear (“I don't have anything to say about the correctness or otherwise of it”) that he was not seeking to defend the orders made by her Honour, which involved an automatic dismissal upon the non-payment of significant security for costs ordered against an impecunious plaintiff. Discontinuing an appeal aspects of which were, to say the least, reasonably arguable, does not sustain an order under the VP Act.

Orders consequent upon allowing the appeal

1. [73]

   The Attorney submitted that the matter should be remitted to a judge in the Common Law Division. However, having reviewed the material, this Court can and therefore should re-exercise the discretion.

2. [74]

   Mr Viavattene does not accept that the access road has been validly realigned. That issue was determined adversely to him by Davies J in 2011, in circumstances where there was expert evidence from a surveyor, and no expert evidence from Mr Viavattene. An application for leave to appeal from that decision was discontinued. The same issue has also been determined adversely to him by the reserved judgment of Barr AJ in 2013, and by the decision of this Court on appeal from that judgment. It is plain from the material that the same issue lies behind the vast majority of the litigation in the Local Court, which has also been determined adversely to him.

3. [75]

   When the appeal was heard, Mr Viavattene maintained his position, as follows:

4. [76]

   Mr Viavattene’s view may be genuinely held, but it is wrong. On the survey evidence before this Court, there has not been, for years, an access track over Mr Viavattene’s and his wife’s land. It remains open, in theory, for him to supply evidence calling into question the survey, although I have no reason to doubt its accuracy, in support of an application for leave. But all litigants are bound by well-established principles of res judicata and issue estoppel, and it is vexatious for Mr Viavattene to continue to bring proceedings inconsistent with numerous decisions of courts on this issue. His doing so, repeatedly over the last four years, enlivens the power under the VP Act and warrants its exercise.

5. [77]

   I do not regard the other proceedings as giving rise to a basis for an order under the VP Act.

Matters not decided

1. [78]

   In those circumstances, it is not necessary to decide how the VP Act operates in relation to criminal matters, and given the Attorney’s concession and the absence of full argument, it is inappropriate to do so. The Attorney contended that the Act extended to criminal proceedings, such that the way in which an accused defended a prosecution could amount to “conduct”. That submission is supported by the legislative text. However, an alternative reading, which is consistent with s 5(1)(c), is that it applies only to criminal proceedings commenced by the person said to be a vexatious litigant. That would include private prosecutions, but not cases such as the present where a person is repeatedly prosecuted. That construction avoids three results which would not lightly be attributed to the Legislature without clear language. One is that a general order under the VP Act prevents a person from applying for bail without satisfying the requirements of s 14, and introduces the mandatory regime under Part 3 before the bail application can be determined. A second unlikely result is that there is an element of double punishment in an accused being convicted and being made the subject of an order under the VP Act by reason of the fact of his or her failure to appear. A third consideration is that the Attorney stands in a difficult position in that respect; it would seem odd that the first law officer, responsible inter alia for the administration of criminal justice, also has a special status to apply for a VP order. I do not express a concluded view on the issue.

2. [79]

   Finally, it is also unnecessary to express a view on the ability, in an appropriate case, to make a “blanket” order under the VP Act, as to which different views have been expressed at first instance. However, it would seem desirable in most if not all cases to consider whether provision should be made carving out certain categories of proceedings which may be instituted without leave, as was done in Potier v State of New South Wales [2014] NSWCA 359.

3. [80]

   I have had the advantage of reading the judgments of Beazley P and Basten JA on the construction of s 6. I agree with both of their Honours that it is not appropriate in this appeal to determine that issue. The issue recalls that which commonly arises when a legal test turns on the purpose of a transaction or of litigation. As Lord Sumption JSC said in Hayes v Willoughby [2013] UKSC 17; [2013] 2 All ER 405 at [9], there is no general rule in such cases. When in an appropriate case the issue is determined, assistance may be found from the judgments in that appeal.

Orders

1. [81]

   I propose the following formal orders:

   1. (1)

      Appeal allowed.

   2. (2)

      Set aside the orders made on 26 March 2014, and in lieu thereof, order that pursuant to s 8(7)(c) of the Vexatious Proceedings Act 2008 (NSW) Mr Viavattene is prohibited from instituting proceedings in New South Wales which are inconsistent with the finding that, following its realignment in about 11 November 2010, the access track to adjoining land no longer encroaches upon the property known as 1520 Numinbah Road, Chillingham.

2. [82]

   Those orders have the effect of setting aside the costs order made by the primary judge, and not putting in its place any order as to costs, with the intention that the parties bear their own costs.