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[2013] NSWSC 1765
Supreme Court of NSW
2013-11-28
Harrison J, Fullerton J
Original judgment source is linked above.
Judgment 1HIS HONOUR: On 3 May 2013 Fullerton J made an order pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008 prohibiting Beverly Georgina Viavattene from instituting proceedings in New South Wales other than with leave of an appropriate court under that Act: see Attorney General in and for New South Wales v Beverly Georgina Viavattene [2013] NSWSC 453. Her Honour also made an order staying any legal proceedings instituted by Ms Viavattene in any court or tribunal in New South Wales commenced before that date. 2During the course of the week commencing 18 November 2013, when I was sitting as the Common Law Duty Judge, Ms Viavattene sent a large bundle of approximately 475 pages, consisting of several separate documents, to my chambers by facsimile. It will in due course become necessary to refer more fully to some of these documents. 3A letter addressed to my Associate dated 18 November 2013 accompanied the documents. That letter is in the following terms: "Dear Ms Heywood, Re: Notice of Motion and Summons Seeking Leave Appeal As per the attached letter dated 18/11/2013, application for fee waive, Notice of Motion and Summons Seeking Leave Appeal with supporting affidavit of Beverly Georgina Viavattene dated 15/11/2013, Certificate of Exhibits with attached Exhibits labelled A1 to A14, summary of argument, Notice of Appeal and documents referred to in the Index of the White Folder, I require my matter to be listed before the Duty Judge of the Common Law Division because I am in poverty and cannot afford to travel to Sydney or pay to file my documents in the Supreme Court which I am required to do before any of my criminal appeal matters or applications made to the Court (see Certificate of Exhibits A 1 to A14) can proceed or be listed by the Court or proceed to hearing? Can you please place this e-mail and documents attached by the links and referred to the Index of the White Folder below before the Honourable Justice Harrison to be determined on paper in Chambers as a matter of priority, as per the order sought in the Notice of Motion and Summons seeking Leave to Appeal because I am required to seek leave from the Supreme Court before any of my applications can proceed in the Local and District Court to hearing and I cannot afford to travel to Sydney to file my documents or the cost to copy and post 5 Copies of the White Folders to Sydney as I am now relying on food vouchers and food from the community centre to survive? Can his Honour please approve my application for fee waiver under s 17 of the Criminal Appeal Act 1912 - no costs shall be allowed and grant me leave to file my documents electronically by fax and e-mail, and grant me leave to attend by phone on (02) 66791329 or video link at the Lismore District Court? Thank you for your assistance." 4The notice of motion and summons seeking leave to appeal, to which that letter refers, are two of the many documents sent to me. At the risk of unnecessarily extending these reasons, it seems that I cannot avoid setting out in full the relevant terms of those documents as well. They are as follows: "NOTICE OF MOTION Orders Sought 1. An order granting the applications for leave to appeal under sections 16 of the Vexatious Proceedings Act 2008. 2. For an order under section 18.2 of the Uniform Procedure Rules 2005, that under these rules or practices of the court, the motion may be made without the prior service of Notice of Motion. 3. For an order under Division 9 Rule 7.36 of the Uniform Civil Procedure Rules for referral to the Pro Bono Panel. 4. For an order for a solicitor or barrister to be appointed as soon as possible to help in the administration of Justice under section 23 of the Supreme Court Act 1970. 5. An order that all convictions and cost orders made in the Murwillumbah Local Court, Lismore District Court and Supreme Court against Beverly Viavattene are set aside and stayed. 6. An order that the Summons seeking Leave to appeal and Notice of Motion are heard expediently because the applicants' children are at risk of further harm from the continual intimidation and stalking by Bruce Morton, Evelyn Birch and John Gillieatt using their vehicles to criminally trespass, speed, stalk, harass, intimidate, interfere, approach the house with their vehicles on private property, make criminal verbal threats and attack the Viavattene family and have incited John Gillieatt and others to intimidate and harass, interfere and approach the plaintiff and family and are damaging the plaintiff's property and have disobeyed paragraph 4 of the Order made by Justice Rothman on the 25 June 2013 in the Supreme Court case number 2013/178940. 7. An order granting the Application to Appeal against the Interlocutory Judgment or Order made by Judge Wells in the Lismore District Court on 26/7/2013 in case number 2010/368043 - APVO by Con Patrick Raftery for Bruce Morton filed in the Court of Criminal Appeal on the 5/8/2013. 8. An order granting leave to Appeal Local Court Case numbers: 2010/368043, 2011/37401, 2011/130496, 2011/133242, 2011/391692, 2013/161424 - NSW Police v Beverly Viavattene. 9. An order granting the annulment applications made to the Local Court under section 40 of the Local Courts Act 1982 in case number: 2013/161424 - R v Beverly Viavattene filed in the Murwillumbah Local Court on the 28/6/13, transcript application and application to waive fees. 10. An order granting the application under section 40 of the Local Courts Act 1982 to annulment the orders made in case number: 2013/391692 - R v Beverly Viavattene filed in the Murwillumbah Local Court on the 28/6/2013. 11. An order granting the application for Review of Bail Conditions. 12. An order granting the application to appeal against the conviction and cost orders made by Magistrate Dakin on 29/5/2013 in case Number: 2013/161424 - R v Beverly Viavattene. 13. An order granting the application to appeal against the conviction and cost orders made by Magistrate Stafford on 29/3/2012 in case no: 2013/1391692 - R v Beverly Viavattene. 14. An order granting the application to appeal against the conviction and cost orders made by Magistrate Linden on 7/3/2012 in case no: 2010/338082; 2011/317401; 2011/318445; 2011/317487; 2011/318455 - R v Beverly Viavattene. 15. An order granting the application to appeal against the conviction and cost orders made by Judge Murrell on 9/2/2012 against Beverly Viavattene in case No's: 2010/368043; 2010/338082; 2011/37401; 2011/133242; 2011/130496; 2011/318455, & 2011/235752. 16. A Prerogative Order for Judicial Review to quash all convictions and/or cost orders made against Beverly Viavattene in case numbers: 2010/00368043 - Beverly Georgina Viavattene v Bruce Morton; 2011/00037401 - Beverly Georgina Viavattene v R; 2010/00338082 - Bruce Morton v Beverly Georgina Viavattene; 2011/00317401 - Beverly Georgina Viavattene v R; 2011/00391692 - Beverly Georgina Viavattene v R 2011/00133242 - Beverly Georgina Viavattene v R; 2011/00130496 - Beverly Georgina Viavattene v R; 2011/00318445 - AVO Beverly Viavattene v Evelyn Birch & Brian Harmon; 2011/00235752 - Beverly Georgina Viavattene v R; 2011/003167487 - AVO Beverly Georgina v Jamie Nicolson; 2013/00161424 - R v Beverly Georgina Viavattene; and 2013/00195152 - R v Beverly Georgina Viavattene; 2012/00117819 under section 43(1) of the Judicial Review Act 1991 and section 104 (1)(b) of the Justices Act 1902. 17. Order for Costs to be awarded in favour of the applicant. 18. An order or direction that the police are to protect property and persons at 1520 Numinbah Rd Chillingham, including Johanne Viavattene, Kathryn Viavattene, Beverly Viavattene, and Peter Viavattene. SUMMONS SEEKING LEAVE TO APPEAL Details of Application for Leave to Appeal 1. This application for leave to appeal is brought under section 14 of the Vexatious Proceedings Act 2008. 2. This application for leave to appeal is brought under sections 23 - General jurisdiction of the Supreme Court; that which is necessary for the administration of justice in NSW, 48(2)(d) and 48(3) - Assignment to the Court of Appeal, 66 - Injunction, 69(1) & 69(3) - Proceedings in lieu of writs, 69B - Other powers in relation to claimants for judicial review of convictions and sentences and 69C of the Supreme Court Act 1970 - Stay of execution of conviction, order or sentence pending review. 3. This application for leave to appeal is also brought sections 62(1) - Effect of defect in notice of appeal or application for leave to appeal; 63 - Stay of the execution of sentence pending determination of appeal; 64 - Extension of appeal proceedings to other convictions and sentences and 70(1)(c)(d) of the Crimes (Appeal and Review) Act 2001 - limit on costs awarded against public prosecutor. 4. This application is also brought under part 51B rule 6(2)(a) of the Supreme Court Rules 1970 and section 46(2) of the Judicial Review Act 1991 for an extension of time for making an application for review because of the decision made by Justice Barr on 28/6/2013 in the Supreme Court case no: 2013/128941 - Peter Viavattene v Tweed Shire Council to quashed convictions against Peter Steven Viavattene proves beyond reasonable doubt that no access exists of any type in front of or through our Torrens Title property exists or has been registered on title; and if it is not registered on Title it does not exist (Indefeasible Title) and relates directly to all my matters in appeal. 5. I seek an extension of time because of the following special circumstances: I am on a disability pension and I am the victim of crime and have spinal cord compression from being assaulted by Bruce Morton and associates, and I am in poverty and cannot afford to pay court costs or a solicitor with the legal expertise to represent me in the Supreme Court which I am required to do before any of my criminal appeals (which have been stayed) can proceed without leave from the Supreme Court under section 14 of the Vexatious Proceedings Act 2008. 6. I have been refused a Legal Aid Civil grant and have been advised to seek Pro Bono assistance because I am in financial hardship and cannot afford to pay for photocopying or to travel to Sydney to file the necessary applications to Seek Leave from the Supreme Court. Also the Legal aid solicitors & barrister who were allocated a grant of legal aid in relation to my criminal matters were unable make applications for leave from the Supreme Court on my behalf and withdrew their representation when the matter came before the Court. I have been severely disadvantaged by the actions of solicitors in the past who have had a conflict of interest and failed to represent me after putting in writing that they were. Orders Sought 1. An order granting leave to proceed with appeal. 2. Extension of time to appeal granted. 3. An order granting leave to appeal from Orders 1 and 2 made by Harrison AsJ in case number 2012/169892 - Attorney General in & for the State of NSW v Beverly Viavattene. 4. An order granting leave to appeal from all of the decision made by Harrison AsJ in case number 2012/117819 - Beverly Viavattene v Sen Con Davison & Sgt Thierjung. 5. An order granting leave to appeal from the whole of the decision made by Fullerton J on the 3/5/2013 in case 2012/169892 - Attorney General in & for the State of NSW v Beverly Viavattene. 6. An order to set aside and quash all convictions and cost orders against Beverly Georgina Viavattene made in the Murwillumbah Local Court and Lismore District Court. 7. An order to set aside and stay all cost orders against Beverly Viavattene made in the Supreme Court. 8. An order granting leave to apply for my Bail to be Reviewed and Review of Bail Conditions. 9. An order granting leave to apply for Transcripts and fee waivers which are necessary for my criminal appeals. 10. An order granting leave to appeal the conviction and cost orders made in Local Court Case Number 2011/391692: Senior Constable Greg Davison and Sergeant Paul Thierjung v Beverly Georgina Viavattene. 11. An order granting leave to appeal the conviction and cost orders made in Local Court Case Number 2011/133242: Constable Jason McGinley v Beverly Georgina Viavattene. 12. An order granting leave to appeal the conviction and cost orders made in Local Court Case Number 2013/161424: Senior Constable Dean Broardhurst and Constable Melissa Simpson v Beverly Georgina Viavattene. 13. An order granting leave to appeal the APVO made local court case number: 2010/368043 - AVO application by Con Raftery for Bruce Morton v Beverly Viavattene. 14. An order granting the application for leave to appeal local court case numbers: 2011/130496 & 2011/37401: Con Patrick Raftery v Beverly Viavattene. 15. An order granting leave to appeal case numbers: 2010/338082; 2011/317401 & 2013/6528 - Beverly Viavattene v Bruce Morton. 16. An order granting leave to appeal case numbers: 2011/317487; 2011/235752 & 2013/6310: Beverly Viavattene v Lachlan James Nicolson. 17. An order granting leave to appeal case number: 2011/318455: Beverly Viavattene v Evelyn Birch. 18. An order granting leave to appeal case number: 2011/318445: Beverly Viavattene v Bruce Harmon. 19. An order for a stay of execution of convictions, order or sentence against Beverly Viavattene in case numbers 2013/195152 and 2013/161424 under section 69C of the Supreme Court Act 1970. 20. For an order to set aside and quash all convictions and cost orders made at the Murwillumbah Local Court, Lismore District Court and Supreme Court against Beverly Viavattene under section 69B of the Supreme Court Act 1970." 5I pause to observe that numerous sentences, phrases and other references in the quoted material are typed in bold or underlined or both. I have decided that it is unnecessary for that formatting to be reproduced in these reasons. It should not be assumed that I have not given the emphasised matters any less attention by reason of that decision. 6The bulk of the remaining material sent to my chambers by facsimile is largely made up of a series of affidavits and the exhibits to those affidavits. Doing the best I can, it seems to me that the principal affidavit is one sworn by Ms Viavattene on 15 November 2013. The others all appear to have been sworn for the purposes of earlier proceedings. It is not easy to summarise or condense the contents of the principal affidavit into a convenient or comprehensible form. Based tentatively upon the assumption that the present application is intended to be understood as an application for leave to appeal from the decision and orders made by Fullerton J, an assumption that is by no means beyond doubt, I observe that the only reference in the entire text of the affidavit to that decision appears in par 19, which is as follows: "19. The orders made by Fullerton J in case number 2012/169892 has cause [sic] all of my appeals to be stayed or dismissed and the Registrars at the Local, District and Supreme Courts refuse to accept any application I have made in relation to my criminal appeal matters, annulment applications, Review of Bail and Review of bail conditions without Leave from the Supreme Court." 7It will however be apparent from a review of the terms of the notice of motion and the summons seeking leave to appeal that the assumption I made cannot withstand scrutiny. The affidavit of 15 November 2013 in fact refers to a multiplicity of earlier proceedings, most if not all of which have been referred to and considered by Fullerton J in her reasons for judgment delivered on 3 May 2013. This application is therefore not limited to an application for leave to proceed by way of a proposed appeal against her Honour's decision and orders but amounts to a general application for leave to proceed by way of a proposed appeal against most, if not all, of the decisions that her Honour dealt with in that case.
Consideration 8Sections 14 and 15 of the Act are as follows: "14 Application for leave to institute proceedings (1) This section applies to a person ('the applicant') who is: (a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or (b) acting in concert with another person who is subject to an order referred to in paragraph (a). (2) The applicant may apply to an appropriate authorised court for leave to institute proceedings that the order would otherwise prohibit the person from instituting. (3) The applicant must file an affidavit with the application that: (a) lists all occasions on which the applicant has applied for leave: (i) under this section, or (ii) before the commencement of this section-as required by an order under section 70 of the Land and Environment Court Act 1979 or section 84 of the Supreme Court Act 1970 , and (b) lists all other proceedings the applicant has instituted in Australia, including proceedings instituted before the commencement of this section, and (c) discloses all facts material to the application, whether supporting or adverse to the application, that are known to the applicant. (4) The applicant must not serve a copy of the application or affidavit on any person unless: (a) an order is made under section 16(1)(a), and (b) the copy is served in accordance with the order. (5) An appropriate authorised court may dispose of the application by: (a) dismissing the application under section 15, or (b) granting the application under section 16. (6) Despite any other Act or law, the applicant may not appeal from a decision disposing of the application. 15 Dismissing application for leave (1) An appropriate authorised court must dismiss an application made under section 14 for leave to institute proceedings if it considers: (a) the affidavit required by section 14(3) does not substantially comply with that subsection, or (b) the proceedings are vexatious proceedings, or (c) there is no prima facie ground for the proceedings. (2) The application may be dismissed even if the applicant does not appear at the hearing of the application." 9In my opinion these proceedings are vexatious proceedings and there is no prima facie ground for them. My reasons for coming to those conclusions are as follows. 10At [62] and [63] of her 3 May 2013 reasons for judgment, Fullerton J said this: "[62] Despite the clearly articulated decisions of two judges of this Court and an associate judge when proceedings instituted by the defendant (or her husband) were dismissed, she has invariably appealed (or sought leave to appeal) from those decisions, including an application to the High Court for a grant of special leave. By this conduct, it is my view that she has shown either no appreciation or no regard for the fact that appellate review is to be confined to correcting errors of law, and no concern at the unwarranted waste of time and judicial resources in pursuing relief on the same or substantially the same facts. I am satisfied that the proceedings instituted in the High Court (numbered 19 in the Schedule) and in the Court of Appeal (numbered 22 in the Schedule) are vexatious proceedings. [63] Her conduct of the proceedings brought by the Attorney General, including the notice of motion to strike out the summons (numbered 23 in the Schedule), the service of the Notice of a Constitutional Matter, where unsubstantiated allegations of corruption were made and elaborate and largely incomprehensible claims of breach of multiple statutory rights were alleged (dismissed by Harrison AsJ) and a further application for special leave to the High Court (numbered 24 in the Schedule) are also vexatious proceedings, instituted and pursued without reasonable grounds and an abuse of the process of this Court and the High Court. This further reinforces my conclusion that the Attorney General is entitled to the order sought by summons, the defendant having frequently instituted and conducted a multiplicity of vexatious proceedings." 11Her Honour's sentiments apply by close analogy to the present application. 12Accepting immediately for present purposes that the fault may be entirely mine, I have found it very difficult to make any sense of the present application at all. I am certainly unable to distinguish between what it is, or may conceivably be, that the present application is intended to achieve on the one hand and the original impetus for the collocation of proceedings that Fullerton J stayed on the other hand. There is an unavoidable and obvious flavour in all of the material of a re-agitation of Ms Viavattene's previous concerns to which she gave public expression in the various cases prosecuted by her in numerous courts in this State over a number of years. In lay terms, Ms Viavattene is simply attempting to do again what she has done regularly in the past and which Fullerton J put a stop to on the application of the Attorney General earlier this year. 13This application is definitively vexatious. It is wholly and unambiguously without any valid or worthwhile foundation of any kind. None of the material before me raises the slightest hint of an outstanding right or interest on her part that Ms Viavattene could legitimately feel has been improperly decided or inappropriately stayed. There is no identified or identifiable basis for an appeal of any type against or from any decision involving Ms Viavattene in any court or tribunal. It is time that her persistent litigious excursions came to an end. 14I have not been able to consider or determine whether or not Ms Viavattene has complied with s 14(3) of the Act. The material is so dense and so voluminous that there is every chance that there is lurking within it a reference to the matters that are required by s 14(3) to be disclosed. Having regard to Ms Viavattene's repeated and urgent calls to my chambers that I deal with this application without further delay, I do not propose to scour the documents in search of a failure to comply. That approach is both favourable to Ms Viavattene and strictly irrelevant having regard to the conclusions I have reached concerning s 15(1)(b) and (c) of the Act. I have not therefore decided this application upon the basis that it failed pursuant to s 15(1)(a) because the affidavit required by section 14(3) does not substantially comply with that subsection. 15The material provided by Ms Viavattene also included an application for a fee waiver. I have taken the view that I should deal with this application as if the fees payable to the registry to commence proceedings had been waived.
Orders 16It is sufficient to make only the following order:
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 November 2013
Attorney General in and for New South Wales
Beverly Georgina Viavattene