Viavattene v Morton and Ors

1. [1]

   On 30th October 2015 Mr Viavattene appeared in person without prior notice in the duty judge list seeking a judicial direction that the Registrar accept for filing, a notice of motion dated 15th October 2015 instituting proceedings for contempt of court against each of the defendants. The alleged contempt is non-compliance by the defendants with an order made by Rothman J on 25th June 2013 in this Local Court appeal in the following terms:

2. [2]

   Mr Cheetham is no longer named as a party to this appeal. Mr John Gillieatt is. The motion seeks to proceed against Mr Gillieatt for contempt of Rothman J’s order notwithstanding that he is not named in the order.

Vexatious Proceedings Act

1. [3]

   Mr Viavattene is a person in respect of whom an order has been made under s 8(7)(c) of the Vexatious Proceedings Act 2008 (NSW) (the Act). That order was made by the Court of Appeal on 13th March 2015. So far as is presently material the order is in the following terms:

2. [4]

   Section 8(7) of the Act provides as follows:

3. [5]

   Section 13 deals with the effect of a vexatious proceedings order. It is necessary only, for present purposes, to set out subsections (1) and (2)

Issues

1. [6]

   Mr Viavattene submits that neither his appeal nor his proposed motion instituting proceedings for contempt of Rothman J’s order are proceedings of a kind to which the Court of Appeal’s order relates. He submits accordingly that the provisions of ss 14, 15 and 16 of the Act are inapplicable to him. And he is entitled to take the procedural step he proposes without restriction.

2. [7]

   Whether Mr Viavettene’s argument is correct depends upon the proper construction of the Court of Appeal’s order and, in my judgment, for this purpose it is necessary to consider its reasons to garner a proper understanding of the scope of the order: Bar-Mordecai v State of New South Wales; Bar-Mordecai v Attorney General (NSW) [2012] NSWCA 207; 83 NSWLR 125 at 136 [36] – [37] per Basten JA, Beazley JA (as her Honour then was) and Sackville AJA agreeing.

The Local Court appeal and the proposed notice of motion

1. [8]

   The principal proceedings in which Mr Viavattene wishes to file the motion purport to be an appeal brought as of right under s 39 Local Court Act 2007 (NSW), and also s 52 Crimes (Appeal and Review) Act 2001 (NSW). Sections 60, 62 and 68(a) Supreme Court Act 1970 (NSW) are also invoked. Leaving aside for the moment questions of competency, the appeal is said to be from the decision of Magistrate O’Brien (as the Deputy-Chief Magistrate then was) dismissing applications for apprehended personal violence orders against the defendants. I say purports to be an appeal from that decision because it also seeks orders in relation to decisions by other magistrates in other proceedings and a decision of her Honour Judge Murrell (as her Honour then was) in the Lismore District Court. Other relief is sought under the Supreme Court Act.

2. [9]

   On the face of the Amended Summons Commencing an Appeal filed on 25th July 2013, it is apparent that Mr Viavattene seeks relief which is inconsistent with the finding that, following its realignment in or about 11th November 2010, the access track to adjoining land no longer encroaches upon the property known as 1520 Numinbah Road, Chillingham. That this is so is clear from prayer for relief 12 which is in the following terms:

3. [10]

   Grounds 40 to 45 relate to this matter. For instance Ground 40 is in the following terms:

4. [11]

   The written submissions (dated 28th October 2015) that Mr Viavattene wishes to rely upon in relation to his proposed notice of motion invoke the provisions of s 42 Real Property Act 1900 (NSW). Paragraph 6 states in part:

The Court of Appeal’s decision

1. [12]

   Leeming JA at [45] – [52] referred to 21 Local Court proceedings to which Mr Viavattene was a party which, inter alia, were the subject of Bellew J’s decision at first instance ([2014] NSWSC 327). These proceedings were described by Bellew J as the 21st local court proceedings (see [112] – [118] of his Honour’s reasons). At [50] and [52] of the Court of Appeal decision, Leeming JA said:

2. [13]

   It is also germane to set out Bellew J’s summary of the present proceedings, which is as follows:

3. [14]

   I have no doubt that although no stay was ordered in respect of this appeal by the Court of Appeal, these proceedings are covered by the description of the kind of proceedings that Mr Viavattene is prohibited from instituting by the vexatious proceedings order made by the Court of Appeal; that is to say the proceedings are “of the kind to which the [Court of Appeal’s] order relates” (s 13 (1)(a)). So much in my judgment, is apparent from [74] – [76] of Leeming JA’s reasons:

4. [15]

   This appeal is, therefore, vexatious on the findings made by the Court of Appeal because its success depends upon him achieving a result inconsistent with the finding that the access track does not encroach upon his property.

5. [16]

   In my judgment it follows that the proposed contempt proceedings are also proceedings of a kind to which the Court of Appeal’s order relates. I acknowledge that in Bar-Mordecai Basten JA (at 135 [32] – [34]) indicated that there should be some limit on the scope of interlocutory applications which could be said to be interlocutory proceedings within the meaning of s 4 of the Act. In accordance with Part 55, Rule 6 of the Supreme Court Rules 1970 (NSW), proceedings for punishment for contempt committed in connection with proceedings in the court “must be made by motion on notice in the proceedings”. Such proceedings are no mere matter of practice and procedure, and the filing of such a motion is the institution of proceedings within the meaning of the Act, and within the meaning of the Court of Appeal’s order.

6. [17]

   It follows that, contrary to Mr Viavattene’s argument, he requires leave first, granted under s 16 of the Act, before these proceedings may be instituted.

7. [18]

   Mr Viavattene has had the opportunity of arguing that the proceedings are not caught by the Act and I have rejected his argument. Absent an application which complies substantially with the provisions of s 14 of the Act, the Registry was correct to reject the filing of the notice of motion. Had the notice of motion been accepted for filing, those proceedings would have been stayed in accordance with s 13(2) “until they are dismissed (or taken to be dismissed)”. Had Mr Viavattene made an application which substantially complied with s 14 of the Act, I would have been bound to dismiss the application in accordance with the provisions of s 15 of the Act on the ground that the proceedings are vexatious proceedings, within the meaning of s 6(a) and (c) of the Act, on the basis of the findings made in the Court of Appeal referred to at [14] above.

8. [19]

   In the circumstances I think the appropriate orders for me to pronounce in due course are a declaration that this appeal are proceedings of a kind to which the Court of Appeal’s order under the Act made on 13th March 2015 relates, and consequentially to stay the proceedings under s 8(7)(a) of the Act.

9. [20]

   As I have already remarked I am concerned that the appeal, in any event, and, quite apart from the operation of the Act, is incompetent. The decision below was a decision dismissing an application for an apprehended violence order under Crimes (Domestic and Personal Violence) Act 2007 (NSW). Appeals under that legislation are governed by s 84 of that Act. Section 84(2)(a)(1) is in the following terms:

10. [21]

    Section 84(3) incorporates Part 3 of the Crimes (Appeal and Review) Act 2001 (NSW) incorporating ss 11 to 22 of that Act. Section 84 does not incorporate the provisions of Part 5 of the Crimes (Appeal and Review) Act and s 52, relied upon by Mr Viavattene, is inapplicable. Moreover, and manifestly, Mr Viavattene is not “a person who has been convicted or sentenced by the Local Court” to found an appeal under s 52. That is to say, Magistrate O’Brien did not convict him of any criminal offence. Mr Viavattene brought the proceedings against others. There is no provision for an appeal to this Court from a magistrates decision under the domestic and personal violence legislation.

11. [22]

    Sections 60, 62 and 68(a) of the Supreme Court Act do not confer any right of appeal. Indeed the invocation of those provisions does no more than demonstrate that the proceedings are inconsistent with the finding that the access track no longer encroaches on Mr Viavattene’s property. His reliance on these provisions serves as additional demonstration that this appeal is caught by the order of the Court of Appeal.

12. [23]

    The specific provisions of s 84 of the Crimes (Domestic and Personal Violence) Act exclude the operation of the more general provisions of s 39 of the Local Court Act. This is because, in the words of Dixon J (as the Chief Justice then was), “[an] appeal is not a common law remedy, and proceedings at law are only subject to that remedy by statute”: Grierson v The King [1938] HCA 45; 60 CLR 431 at 436. It is the Crimes (Domestic and Personal Violence) Act which makes specific appeal provisions in relation to AVOs and therefore it is these provisions which dictate how and when an AVO appeal may be brought.

13. [24]

    These matters have not been put to Mr Viavattene and he should be given the opportunity to address them. I propose to direct the Registrar to list the matter with notice to Mr Viavattene requiring him to show cause why the appeal should, in any event, not be dismissed as incompetent.

14. [25]

    For these reasons my orders are:

    1. (1)

       Declare that these proceedings are proceedings of a kind to which the order of the Court of Appeal under s 8(7)(c) of the Act pronounced on 13th March 2015 relate;

    2. (2)

       Subject to order 3, under s 8(7)(a) of the Act stay these proceedings;

    3. (3)

       Direct the Registrar to list the matter before me at 9:30 am on Friday, 4th December 2015 with notice to Mr Viavattene requiring him to show cause why the appeal should not be dismissed as incompetent.

    4. (4)

       Direct the Registrar to give notice of these orders to the defendants.