Attorney General in and for the State of New South Wales v Beverly Viavattene

Judgment 1By summons filed 29 May 2012, the Attorney General in and for the State of New South Wales seeks, firstly, an order that pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008, the defendant is prohibited from instituting proceedings in New South Wales without leave of the Court; and secondly, an order that pursuant to s 8(7)(a) of the Vexatious Proceedings Act, all proceedings in New South Wales already instituted by the defendant be stayed. 2By notice of motion filed 4 July 2012, the defendant seeks an order that the proceedings as against her be struck out. It is this notice of motion that I will consider in these reasons. 3Ms Stenning appeared for the Attorney General. The defendant was self represented.

Court's power to dismiss proceedings 4The plaintiff relies on s 8(4)(d) of the Vexatious Proceedings Act to have the Attorney General's summons struck out. 5Section 8(4)(d) of the Vexatious Proceedings Act reads: "8 Making of vexatious proceedings order (4) Orders may be made on court's own motion or on application An authorised court may make a vexatious proceedings order of its own motion or on the application of any of the following persons: ... (d) a person against or in relation to whom another person has instituted or conducted vexatious proceedings." 6This section does not assist the plaintiff. 7The Court may strike out pleadings pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005 (UCPR). It reads: "14.28 Circumstances in which court may strike out pleadings (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)." 8The word "pleading" is defined in the Dictionary to the UCPR, which states: "pleading includes a statement of claim, defence, reply and any subsequent pleading for which leave is given under Part 14, but does not include a summons or notice of motion." 9These proceedings were commenced by summons. A summons does not fall within the definition of "pleading". Hence, UCPR 14.28 does not apply. 10However, the Court has the power under UCPR 13.4 to dismiss proceedings: "13.4 Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)." 11In addition, the Court has an inherent power to stay or dismiss proceedings that are an abuse of its process: Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 944 (Cross J) (in relation to the equivalent power in the Supreme Court Rules 1970; accepted by Hall J to apply in relation to the UCPR in Walsh v Little [2009] NSWSC 267 at [8] - [10]). 12The test to dismiss proceedings on a summary basis (that is, without going to trial for a hearing on its merits) is a high one. The test is perhaps best expressed in General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125, where Barwick CJ stated at 129: "[T]he plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action...is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". ... As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same." 13The Attorney General relied upon the affidavit of Holly Stenning affirmed 29 May 2012. The basis of the Attorney General seeking an order that the defendant be declared vexatious is the way she has litigated proceedings in various courts. She has a number of proceedings in the Local Court at Murwillumbah, one in this Court and one in the Consumer, Trader and Tenancy Tribunal. The plaintiff intends to rely on various court files and transcripts of those proceedings at the hearing. 14To support the orders sought in her notice of motion the defendant trammels wide-ranging evidence, assertions and submissions. I have read them all and carefully considered their contents. The defendant also requested this Court watch two DVDs, Ex BGV1 and Ex V4 (not exhibited at this hearing), but regrettably Ex BGV1 did not play. I read the synopsis of the DVD footage and I have also taken it into account. The plaintiff submitted that there is nothing in the evidence filed by the defendant on this motion that satisfies any of the tests set out above in General Steel. 15The background to the various proceedings being litigated by Mrs Viavattene is as follows: There has been ongoing dispute between Mrs Viavattene (and her husband) and Mr Morton (and Ms Birch) about whether an easement or council access road exists through Mrs Viavattene's property which enables Mr Morton to access his property. At the heart of Mrs Viavattene's complaint is that she firmly believes that because there is no easement registered upon the property owned by her husband and herself, one does not exist. A real property search of Mr and Mrs Viavattene's property (in evidence) reveals that there is no easement registered on the title. However, that is not necessarily decisive. This Court can make an order imposing an easement over the land if the easement is reasonably necessary for the effective use of other land that will have the benefit of the easement (see s 88K of the Conveyancing Act 1919). Mrs Viavattene also asserts that the Police do not take her complaints seriously and do not act upon them. A number of the Local Court proceedings at Murwillumbah arise out of this dispute. 16Also at this hearing, Mrs Viavattene relied upon a Notice of Constitutional Matter in these proceedings (filed in the Registry). This document also covers wide-ranging issues. It reads: "NOTICE OF CONSTITUTIONAL MATTER