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

Supreme Court of NSW|2013-05-03|Before: Fullerton J

Judgment 1HER HONOUR: By summons dated 29 May 2012 the Attorney General of New South Wales makes an application for a vexatious proceedings order ("the order") under s 8(7)(b) of the Vexatious Proceedings Act 2008 ("the Act") the effect of which would be to prohibit the defendant, Beverly Viavattene, from instituting proceedings in New South Wales other than with a grant of leave, and staying any proceedings instituted by her before the date of the order. 2The Attorney General has standing under s 8(4)(a) of the Act to bring the application despite being a stranger to each of the proceedings relied upon as grounding the issue of the order. 3The defendant, who appeared on her own behalf in the proceedings before me, submitted that the summons should be dismissed. She submitted that she was not a vexatious litigant (by which I understood her to mean she was not a person against whom a vexatious proceedings order should issue) as none of the proceedings relied upon by the Attorney General to which she was a party, or which she conducted on her husband's behalf with leave, qualify as vexatious proceedings as defined in s 6 of the Act. In essence, she submitted that despite the ultimate disposition of the multiplicity of proceedings she has either instituted or conducted (in each case unfavorably to her) she has a continuing entitlement to pursue a catalogue of legal rights to redress from breach of her rights as a landowner. She also claimed that she has a continuing right to protection from the criminal and civil wrongs to which she and her family have been subjected in the past (and from which they continue to suffer) by her neighbours and the police (with whom her neighbours are in a criminal conspiracy). In short, she submitted that the application by the Attorney General to prevent her from exercising her rights is "vexatious". 4On 25 March 2013, after hearing submissions I granted the relief sought in the summons and made orders in the following terms:

Pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008, Beverly Georgina Viavattene is prohibited from instituting proceedings in New South Wales other than with leave of an appropriate court under that Act.

The case in summary 6The defendant's litigation history is dominated by a dispute with her neighbours, Bruce Morton and Evelyn Birch, concerning what her neighbours regard as a right of access to their property at Numinbah Road, Chillingham by means of an access track within the road reserve on the public road bordering their property and the defendant's property, and what the defendant regards as a trespass across her property in the course of them exercising that right of access. 7The dispute erupted in September 2010 and has raged unabated since that time with the defendant instituting and conducting proceedings in the Local Court at Murwillumbah, the District Court, this Court and the High Court, directed to making good her claim that she is entitled to prevent her neighbours accessing their property; to prove that her neighbours (and their friends) have threatened and used violence against her and her family; and to prove that police and Council officers have acted corruptly in refusing to recognise her rights and by wrongly endorsing the position of her neighbours. In none of the proceedings instituted by her in the Local Court or this Court at first instance was she successful. Of the appeals to the District Court, to this Court and to the High Court that were either not abandoned by her before they were determined, or that were dismissed because she did not appear, all were dismissed.

The evidence 8The Attorney General relied upon an affidavit of Holly Stenning dated 29 May 2012 to which was exhibited five volumes of materials including the decisions of various magistrates embodied in transcripts of proceedings before the Murwillumbah Local Court, and reported and unreported decisions of the District Court, this Court and the High Court. I admitted into evidence all of the materials exhibited to Ms Stenning's affidavit on the express basis that although some proceedings when viewed in isolation may not qualify as vexatious proceedings as defined in s 6 of the Act, the defendant's litigation history as a whole gave context to the individual proceedings which, when grouped under various subject headings, were relied upon by the Attorney General as justifying the making of the order. These proceedings have been summarised in a schedule which is attached to and forms part of this judgment ("the Schedule"). 9The defendant relied upon an affidavit dated 19 March 2013 extending to 221 paragraphs to which she annexed a large volume of documents. The affidavit also referred to other affidavits sworn by the defendant variously dated 2 July 2012, 9 July 2012 and 31 July 2012. I received that evidence subject to relevance. (The Attorney General expressly relied upon the defendant's affidavits of 2 July and 9 July 2012.) 10There was considerable repetition in the affidavits relied upon by the defendant. That evidence was directed generally to either reasserting her right to redress for trespass or for the issue of orders for apprehended violence against her neighbours, claims that were variously asserted in proceedings that were either ultimately dismissed because she failed to appear to prosecute them (see, for example, proceedings in the Local Court numbered 1, 6, 7 and 8 in the Schedule, and proceedings in the District Court numbered 10 to 16) or dismissed after contested hearings in this Court. In addition, claims of trespass and assault against her neighbours, and allegations of corruption by police and the Tweed Shire Council were also made in the affidavits variously asserted in proceedings in this Court and the High Court (see, for example, proceedings numbered 18, 20 and 21 in the Schedule). 11The defendant's affidavit of 19 March 2013 also annexed various documents that were tendered in various proceedings. In particular, the defendant insisted that I receive into evidence on this application (and view) video evidence of what she claimed was a series of assaults and intimidation by her neighbours and which she claimed proves that the police have perverted the course of justice by knowingly permitting her neighbours to trespass on her property and to commit criminal offences with impunity. This evidence was considered by Harrison AsJ before her Honour dismissed an appeal against the defendant's conviction for breach of an apprehended violence order (AVO) and refused other relief (see proceedings numbered 18 in the Schedule), and before her Honour dismissed the defendant's notice of motion striking out the Attorney General's summons (see proceedings numbered 23 in the Schedule). I do not propose to reconsider the DVD evidence. After a detailed consideration of her Honour's reasons for decision in both cases, I am satisfied that it is unnecessary for me to consider that evidence in order to decide the question whether the Attorney General has satisfied me that orders should be made under the Act.

The legislative scheme 12Section 8(1)(a) of the Act provides that a vexatious proceedings order may be made where an authorised court is satisfied that "the person has frequently instituted or conducted vexatious proceedings in Australia". (An authorised court includes, relevantly, the Supreme Court of NSW: see s 3 of the Act.) 13Under s 4 of the Act "proceedings" are defined to include: (a) any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and (b) any proceedings (including any interlocutory proceedings) taken in connection with or incidental to proceedings pending before a court or tribunal, and (c) any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way. 14A "vexatious proceeding" is defined in s 6 of the Act to include: (a) proceedings that are an abuse of the process of a court or tribunal, and (b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and (c) proceedings instituted or pursued without reasonable ground, and (d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose. 15The categories in s 6(a)-(d) of what constitutes a vexatious proceeding are necessarily interlinked. 16In Attorney General of New South Wales v Croker [2010] NSWSC 942 at 17, I observed that what constitutes an abuse of a court's process in s 6(a) of the Act includes, by illustration rather than by definition, the pursuit of proceedings that have no prospect of success, or no real prospect of attracting a remedy of any substance, but which involve unjustifiable expense and/or use of judicial resources. It also includes the pursuit of concurrent proceedings, or the institution of fresh proceedings for substantially the same relief, after related proceedings have been dismissed. 17The question whether proceedings are instituted or pursued without reasonable grounds (as provided for in s 6(c)) is to be gauged objectively and not from the perspective of the defendant. This approach protects courts from litigants who are genuinely but mistakenly committed to the correctness of their own conduct or the virtue of their own claim. This ensures that the curial process is not used by litigants to pursue misguided views about the moral or legal correctness of their conduct at the public's expense and in disregard of the unrecovered costs parties to the litigation are often forced to bear. Proceedings instituted to harass or annoy, or to cause delay and detriment or for some other wrongful purpose (as provided for in s 6(c)) connotes a motive or intention on the part of the litigant whose conduct is under consideration while the conduct with which s 6(d) is concerned does not. That subsection is concerned with the effect or consequence of the way in which proceedings are conducted. 18The Attorney General submitted that of the proceedings in the attached Schedule relied upon as grounding the order in this case, one or more than one part of the inclusive definition in s 6 justifies the particular proceedings under consideration being described as "vexatious". 19The question whether the Attorney General has established that the defendant in this case has frequently instituted or conducted proceedings that are vexatious so as to enliven the discretion in s 8(1)(a) of the Act, is to be assessed relative to the course or history of litigation under consideration. The discretion is not enlivened by simply counting the number of actions brought by a defendant, or the repetition of actions, although in a particular case that may prove instructive. In Attorney General v Altaranesi [2013] NSWSC 63 Slattery J said at [21]: To enliven the Court's s 8(1) discretion the alleged vexatious proceedings must also be instituted or conducted "frequently". In Wilson at [13]-[14] Davies J adopted the approach of the New Zealand Court of Appeal in Brogden v Attorney General [2001] NZCA 208 ("Brogden") to assessing whether or not allegedly vexatious proceedings are brought "frequently". The New Zealand Court of Appeal in Brogden (at 201) stated : "A litigant may be said to be persisting in litigating though the number of separate proceedings he or she brings is quite small if those proceedings clearly represent an attempt to re-litigate an issue already conclusively determined against that person, particularly if this is accompanied by extravagant or scandalous allegations which the litigant has no prospect of substantiating or justifying. The Court may also take into account the development of a pattern of behaviour involving a failure to accept an inability in law to further challenge decisions in respect of which the appeal process has been exhausted, or attacking a range of defendants drawn into the widening circle of litigation solely because of an association with a defendant against whom a prior proceeding has failed." 20As to the exercise of the discretion under s 8(1) whether to make the order, Perram J said in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [12], cited with approval in Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192 at [8]: ...the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest - although not determine - a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant's defence to the proceedings by which the order restraining him is sought... (I note that the defendant's application to strike out the plaintiff's summons as "vexatious" was dismissed by Harrison AsJ on 9 August 2012 and on 12 December 2012 special leave to appeal from that decision was refused - see proceedings numbered 24 on the Schedule.) 21I am conscious that the purpose in making the orders sought by the Attorney General in this case is not punitive but protective, and that to deprive the defendant of access to the Courts in the order sought by the Attorney General is a most serious matter (see Attorney General in and for the State of NSW v Gargan; Attorney General of NSW v Wilson [2010] NSWSC 1008).

The defendant's litigation history 22It will be necessary to first determine whether any of the proceedings relied upon by the Attorney General are vexatious proceedings as defined, and then whether it is appropriate to describe them as proceedings that have been frequently instituted or conducted. This can only be done after a review of the various sets of proceedings relied upon by the Attorney General (as noted in [8]) and by considering the nature of the defendant's claim in the proceedings or sets of proceedings; the way the proceedings were conducted by her (including her conduct on the application for orders under the Act and the proceedings instituted by her after service of the summons - see proceedings 23 and 24 in the Schedule) and the judicial pronouncements at the time proceedings were dismissed and orders made. 23I have already noted that the Attorney General does not contend that every proceeding instituted by the defendant is a vexatious proceeding. The Attorney General submitted, however, that a review of the defendant's litigation history from October 2010 reveals distinct and repeated patterns of conduct. For example, counsel submitted that a clear pattern emerges from what I have referred to as "the AVO proceedings" in that the defendant repeatedly instituted proceedings for the issue of orders against her neighbours which she did not prosecute and which, when dismissed, she then applied to "annul". He also highlighted the fact that costs orders made against the defendant in those proceedings were appealed to the District Court and then not prosecuted. Another pattern of conduct is said to be revealed by her persistent claim that her neighbours have no right of access over her property despite unassailable objective evidence to the contrary, and by her pursuit of relief, particularly in this Court and the High Court, which is grossly disproportionate to the wrong she claims to have suffered, and which becomes more elaborate in the process of seeking appellate review.

Proceedings for apprehended violence orders in the Local Court of Murwillumbah: "the AVO proceedings" 24These proceedings can be broken down into three categories:

AVO proceedings initiated by the defendant;
AVO proceedings initiated by the defendant's neighbours and their friends; and
Proceedings brought by the police for breach of the AVO issued against the defendant for the protection of her neighbours and their friends.

AVO proceedings initiated by the defendant in the Local Court 25The defendant instituted three separate proceedings for the issue of an AVO against her neighbours, Bruce Morton and Evelyn Birch, and a fourth against Jamie Nicholson, a visitor to their property. 26The first application by the defendant for an order against Mr Morton was brought on 20 October 2010, while the subsequent proceedings against Mr Morton and Ms Birch were brought on 19 October 2011. All three proceedings were eventually listed for hearing on 1 November 2011. On that date, the defendant applied for an adjournment which was granted. She was, however, ordered to pay costs and the matters were adjourned for mention to 21 November 2011. The defendant appealed the costs order to the District Court. The appeal was listed for hearing before Murrell J on 9 February 2012 on which date the defendant did not appear and the appeal was dismissed. 27On 21 November 2011, the defendant asserted a belief that the proceedings were listed for hearing and urged the Court to hear the applications for the issue of final orders that day. That was refused and the matters were listed for hearing on 7 March 2012. On that date the defendant was represented by Mr O'Reilly, solicitor, who applied for an adjournment on the stated basis that the defendant had a back injury and was unable to attend. The Magistrate refused the application and each of the proceedings were dismissed with costs. The defendant appealed the costs order to the District Court. The appeal was listed for hearing before Murrell J on 9 February 2012 on which date the defendant did not appear and the appeal was dismissed. 28The proceedings instituted by the defendant against Jamie Nicholson on 21 July 2011 were listed for hearing on 3 August 2011. On that date the defendant failed to attend and the proceedings were dismissed. Mr Nicholson's legal representative made no application for costs on his behalf. On 23 August 2011 the defendant filed a notice of appeal to the District Court.

AVO sought by the police for the protection of Bruce Morton 29On 15 June 2011 an AVO was issued against the defendant for the protection of Mr Morton. Orders were made in her absence. On 20 July 2011 she made an application for the order to be revoked. The application was listed for 3 August 2011 on which date the defendant failed to appear and the application was dismissed. On 23 August 2011 the defendant filed a Notice of Appeal to the District Court challenging the orders made by the Court on 15 June 2011. The appeal was listed for hearing before Murrell J on 9 February 2012. The defendant did not appear and the appeal was dismissed.

Proceedings brought by police for breach of AVO and related offences 30In each of four separate proceedings brought by police by the issue of a Court Attendance Notice for breach of the AVO issued for the protection of Mr Morton on 15 June 2011 (and for assault of Mr Morton and resist arrest), the defendant either did not appear or, through her solicitors, sought to adjourn the hearing. 31In three of the proceedings (see proceedings numbered 2, 3 and 4 in the Schedule) the defendant made either what I am satisfied on review were unmeritorious adjournment applications or failed to attend court altogether. 32Following convictions for assault, resisting police and two breaches of the AVO entered on 8 June 2011 in her absence, the defendant filed applications for "annulment" of those orders in the Local Court, supported in each case by the same formulaic grounds and unsupported by evidence. The Court listed the applications for hearing on 3 August 2011. The defendant failed to appear and the applications were dismissed. 33In the fourth prosecution for the breach of the AVO (see proceedings numbered 9 in the Schedule), on each of three dates when the matter was listed for mention the defendant was represented. On 29 March 2012 the matter was listed for final hearing. On that date the defendant's solicitor applied for an adjournment on the basis that the defendant had "parental responsibilities" and could not appear. The adjournment was refused. Her solicitor withdrew having no instructions to act on the defendant's behalf in the substantive hearing. The defendant was convicted in her absence. 34On 16 April 2012 the defendant instituted proceedings in this Court by summons challenging that conviction pursuant to s 52 of the Crimes (Appeal and Review) Act 2001 and seeking declaratory relief (see proceedings numbered 18 in the Schedule) (see [57]-[59] of this judgment). 35After reviewing the various AVO proceedings initiated either by the defendant, or to which she was a party on the application of her neighbours, or when she was prosecuted for breach by the police, I am satisfied she continually and deliberately conducted the proceedings in a manner that unduly lengthened and delayed their ultimate disposition. She made successive applications for adjournments or "annulment" with either insufficient evidence (or without any evidence) and repeatedly failed to appear without adequate explanation (and in some cases without any explanation) when the matter was ultimately listed for hearing in the Local Court and in the District Court. 36I am satisfied that the frequency with which she initiated proceedings in the Local Court (see proceedings numbered 1 to 9 in the Schedule) and the multiplicity of appeals in the District Court (see proceedings numbered 10 to 16 in the Schedule) which she did not ultimately prosecute, were both instituted and pursued without reasonable grounds and, further, that she conducted the proceedings to cause detriment to her neighbours and to delay the orderly disposition of the criminal proceedings brought by police.

Proceedings heard and determined at first instance 37On 10 May 2011, when some of the AVO proceedings had been heard and determined in the Local Court at Murwillumbah, while others were still pending in that Court or pending appeal in the District Court, proceedings were commenced in this Court by summons in the name of the defendant's husband (but conducted by the defendant with leave) seeking injunctive relief to prevent her neighbours, the police and the Council from trespassing on her the property ("the summons proceedings" numbered 20 in the Schedule). 38On 17 May 2011 the defendant commenced proceedings against her neighbours in this Court by statement of claim (in her name and that of her husband) also seeking an injunction together with a claim for "damages" in the amount of $130,690 and "compensation" in the amount of $1.5 million for trespass and assault ("the proceedings by statement of claim" numbered 21 in the Schedule). 39On 27 May 2011 both matters were listed before McCallum J as duty judge to determine the defendant's entitlement to a referral for pro bono assistance under r 7.36 of the Uniform Civil Procedure Rules 2005 (UCPR). Orders were made affording her that assistance. 40On 7 June 2011, at the defendant's insistence, both matters were listed before Kirby J as duty judge on referral from the duty registrar on the basis that an interlocutory injunction was sought on an urgent basis to prevent what she alleged was a continuing trespass by her neighbours on her land. His Honour refused to grant the injunction noting the inadequate state of the pleadings, and the evidence upon which the defendant sought to rely, and the fact that orders had been made under r 7.36 of the UCPR but that no legal advice had been sought to that date. 41On 19 July 2011 the application for the interlocutory injunction was heard and determined by Davies J. (The defendant appeared unrepresented.) His Honour noted that a supporting affidavit of 68 pages had been filed by the defendant which contained a great many assertions, many of which were irrelevant to the issue of trespass. He also noted that a defence had been filed by the defendant's neighbours, supported by an affidavit detailing the steps taken by them to regularise access to their property by applying to the Tweed Shire Council for a grant of approval to construct a driveway, and detailing the repeated acts of interference with that approved right of access by the defendant and her husband after the driveway was constructed, necessitating repeated attendances of the Council and police. They were represented in the proceedings by counsel. 42In considering whether the evidence supported a finding that there was a serious issue to be tried such as to warrant the grant of injunctive relief on an interlocutory basis, his Honour focused upon the documentary evidence prepared by surveyors engaged by the defendant's neighbours, given that the central issue, as his Honour saw it, was the precise extent of the defendant's land relative to the disputed issue of access across that land. As to that question he found as follows: The Plaintiffs' land adjoins the Defendants' land with the Defendants' land being to the north of the Plaintiffs' land on Numinbah Road in Chillingham. A photograph showed that there is a tarred road with an embankment down on either side of that road which is covered largely in grass. On the eastern side of the tarred road and at the bottom of the embankment there is what appears to be an access track which runs along the front of the house that the Plaintiffs own. That access road leads to a gateway onto the Defendants' land. The Plaintiffs claim that that access roadway runs across their land and is not part of the road reserve of Numinbah Road. The Defendants' survey of October 2010 shows that at the northerly end of the access track just before the boundary of the Defendants' land, the access track at that time passed across the north western corner of the Plaintiffs' land. The evidence also discloses that the first Defendant made application to the Tweed Shire Council to build a driveway access to the Defendants' property which would not encroach on the Plaintiffs' land. The variation of the access is shown in a further survey of Landsurv Pty Limited of 30 June 2011. that survey was prepared by Mr Green who, as I have mentioned, has sworn an affidavit on behalf of the Defendants. The survey, on its face, shows that the gravel track or access way has been altered towards the west at the north-westerly end of the Plaintiffs' property, so that it passes through the gate onto the Defendants' property without encroaching on the Plaintiffs' land. It shows that no part of the access way (as altered) passes over or encroaches on the Plaintiffs' land. On 28 October 2010 the council approved the application for the access driveway so that it does not encroach upon the Plaintiffs' land in the manner that I have described. There is no evidence, as I have said, from the Plaintiffs, in the nature of a survey or any other evidence which tends to show that the survey evidence prepared on behalf of the Defendants is not accurate. Mrs Viavattene has made a number of allegations suggesting that the survey has not been properly conducted and has no legality because it is said, in ways that I do not understand, not to comply with various parts of legislation that Mrs Viavattene has quoted to me, including s 178 Conveyancing Act and s 12 Roads Act 1993. Mrs Viavattene also took me to documents from 1987 about the building in front of her house of a grey water trench which was 25 metres long. This was said to show that that part of the land over which the access track ran formed part of the Plaintiffs' land. The photographs and documents that Mrs Viavattene pointed to in this regard were completely inconclusive in showing where the grey water trench was in relation to the access track. Mrs Viavattene also made a number of allegations involving corruption and criminality on the part of the surveyors and the Council. There was no evidence to support these allegations. Part of the allegations in this regard against the Council included assertions that the Council had wrongly approved the variation to the access track. She said, in this regard, that the Council had not followed its own policies which said that the Council would not approve access to a property via a public reserve. This appeared to me to be a misunderstanding on Mrs Viavattene's part about what the Council had done. 43In the result, his Honour concluded that there was no serious question to be tried. His Honour was satisfied at the time of the hearing that the evidence established that the access roadway was not encroaching on the defendants' land. While that did not resolve the question whether there had been a past trespass for which the defendants may be entitled to damages under the statement of claim in the related proceedings, with a view to the speedy resolution of that question his Honour granted leave to the parties to approach the list clerk for an expedited hearing. 44On 21 August 2011, the defendant forwarded to the Registry by email a document of 20 pages and over 100 numbered paragraphs headed "amended statement of claim" where, in addition to her neighbours, the Tweed Shire Council and five police officers were named as defendants. Relief was sought in the form of declarations and orders "for not following the legislation ... for demonstrating contempt for the law ... and for continuing trespass". Compensation in the amount of $100 million was claimed. 45On 29 August 2011, the defendant filed a notice of motion seeking an order that the Council and the police officers named in the amended statement of claim be joined to the proceedings, and an order that the summons proceedings and the proceedings commenced by statement of claim be consolidated. 46On 9 September 2011, notices of motion were filed in both proceedings by the defendant's neighbours. In the summons proceedings orders were sought that the proceedings be dismissed on the basis that the only relief sought in those proceedings had been effectively determined by Davies J, and in the proceedings commenced by statement of claim an order that the proceedings be struck out and that summary judgment be given or, in the alternative, an order for security for costs and an order that the proceedings be stayed until security was provided. 47On 19 September 2011, the notices of motion were listed before Latham J. In respect of the summons proceedings, her Honour granted the orders sought with an order for costs. (I note, as did her Honour, that the summons proceedings were commenced in the name of the defendant's husband but conducted by the defendant with leave.) 48Her Honour acceded to an application for an adjournment in respect of the notice of motion to strike out the proceedings commenced by statement of claim on the basis that the defendant was seeking to obtain legal representation after she withdrew her instructions from the lawyers offering pro bono assistance and after a private firm of solicitors had filed a notice of ceasing to act on 13 September 2011. Her Honour regarded it as in the interests of justice that the defendant be legally represented. She noted that a firm of solicitors in Parramatta had been nominated by the defendant as the solicitors she intended to approach for advice. 49On 22 September 2011, Latham J refused an application by the defendant for a further adjournment noting that Court had been informed by the firm of solicitors in Parramatta that they were not prepared to act. Her Honour also observed that in the course of the proceedings in this Court to that date a number of legal representatives had been nominated by the defendant from time to time as lawyers from whom she had sought advice, some of whom she asserted were in receipt of instructions to act. Her Honour considered that in those circumstances it was difficult to accept the defendant's assertion that it was her intention to actually retain legal representatives or to fund the litigation. Her Honour also noted that the defendant had voluntarily assumed the conduct of the proceedings at an earlier point in time having rejected the offer of pro bono assistance. She concluded that in all the circumstances any attempts to obtain legal representation in the future would likely be defeated by the defendant's lack of funds and, importantly, so far as the proceedings with which I am concerned, because the advice was likely to be that the proceedings had no reasonable prospect of success. Her Honour's review of the history of the proceedings, and the various interlocutory applications based on the absence of representation, supported her ultimate conclusion that the hearing of the strikeout motion should proceed. Her Honour's review also provides context for the defendant's submission in the proceedings before me that it was the fault of one or more firms of solicitors that her claims to redress of various kinds have been unsuccessful and not because the proceedings were instituted or conducted without reasonable cause as submitted by the Attorney General. I am not persuaded there is any substance to the defendant's submission. 50In considering the application to strike out the statement of claim, her Honour accepted the correctness of what Davies J had found established in the proceedings before him, namely that there was no trespass to the plaintiff's land as and from 18 November 2010 when the Tweed Shire Council approved the application for the access driveway to the neighbouring property. This left in issue an allegation of trespass on two discrete dates in November 2010, namely 3 and 8 November, as the only conduct that might be actionable and capable of being supported by the pleadings. Her Honour also noted that the statement of claim did not particularise any entitlement to damages and, in the absence of particulars, the overwhelming prospect was that, even if successful in proving an actionable trespass, the defendant would receive no more than nominal damages. 51In the result, her Honour concluded that the pleadings offended rules 14.7, 14.14, 14.20 and 15.1 of the UCPR in various respects and that the statement of claim was otherwise "unintelligible, ambiguous, vague and too general". While her Honour held that the potential for the actionable trespass remained "theoretically open" although "questionable", indeed "barely arguable", she did not dismiss the proceedings but made an order for security costs in the amount of $50,000 to be paid on or before 11 November 2011 and an order that the proceedings be stayed until security for costs was provided. In light of those orders her Honour dismissed the defendant's notice of motion seeking to join the Tweed Shire Council and nominated police officers as defendants to the proceedings. She did note however that in the event that the plaintiffs filed and served an amended statement of claim on or before 2 December 2011 (subject to the provision of security for costs by the due date) the question of joinder may be revisited in light of the revised pleadings. 52On 3 November 2011 notices of appeal were filed in the summons proceedings, heard and determined by Davies J on 19 July 2011 and by the orders of Latham J on 22 September 2011, in the proceedings commenced by statement of claim. 53On 7 November 2011 (within four days of the proceedings before Latham J being heard and determined) the defendant appeared on her own behalf before Tobias AJA seeking, inter alia, a stay of her Honour's decision and an appeal from the judgment of Davies J. 54Counsel appeared for her neighbours as defendants to both sets of proceedings. The defendant asserted from the bar table that her neighbours were in breach of an AVO taken out by her in December 2010 (when, as the record in these proceeding demonstrates, no AVO had in fact been granted to her). She also applied for the survey the subject of uncontradicted evidence in the proceedings before Davies J to be "struck out" because it did not confer any legal right of her neighbours to access their property. Counsel advised his Honour that when the matter was before the Registrar that morning the offer of an extension of 28 days to enable a summons for leave to appeal to be filed and served (and to enable a more precise formulation of the grounds upon which leave was sought to be filed) was rejected by the defendant, thus necessitating the appearance before his Honour. In the result, and after extensive oral submissions by the defendant on what I consider to be serial irrelevancies, his Honour stayed the orders made by Latham J on 22 September 2011 until further order and directed that the proceedings be listed before the Registrar for directions. He made similar orders in respect of the application for leave to appeal from both decisions. 55No further action was taken by the defendant to prosecute an appeal in respect of either the summons proceedings or those commenced by statement of claim. On 14 December 2011 the proceedings were formally discontinued. 56I do not regard either the proceedings commenced by summons or by statement of claim in May 2011 as vexatious per se, since it is not clear from the materials before me that the defendant was served with or made formally aware of the order of the Council permitting the construction of the access driveway. However, pursuing the relief sought by the statement of claim after Davies J had ruled on the question and without seeking to rely on any evidence to undermine or contradict the accuracy of the survey tendered in those proceedings (save for alleging a criminal conspiracy or one to commit a civil wrong) and then taking steps to appeal both decisions, does offend s 6(a) and s 6(b) of the Act, such that the proceedings are, for that reason, vexatious.

On appeal 57In April 2012, after the defendant was convicted in the Local Court on 29 March 2012 (in her absence) for breach of the AVO granted on 15 June 2011 for the protection of Bruce Morton, she commenced proceedings in this Court under s 52 of the Crimes (Appeal and Review) Act to quash the conviction. In the same proceedings she sought a declaration that there was no council access road or easement over her property and an order for aggravated damages. Two police officers were named as the first and second defendants. 58The appeal was heard by Harrison AsJ on 31 July 2012 (Viavattene v Davison [2012] NSWSC 901 - numbered 18 in the Schedule). The defendant (who appeared on her own behalf) submitted that the Magistrate was in error as a matter of law in determining the issue of breach against her because she claimed she was entitled to park her car so as to block access to her neighbour's property and that neither the police nor her neighbours had a right to be on her land to stop her. In addition, and on the same stated basis, she argued that the police acted contrary to law and in violation of her human rights by commencing criminal proceedings against her. She also sought a declaration that her neighbours had no right of access over her property. 59It is clear beyond doubt that in advancing these submissions the defendant sought to re-agitate issues the subject of the proceedings ultimately heard and determined by Davies and Latham JJ on 19 July 2011 and 22 September 2011, including the claim for compensatory damages in the statement of claim. Harrison AsJ noted that the proceedings brought by statement of claim (and dealt with by Latham J) sought a declaration concerning the easement and, for that reason, together with the fact that the defendant's neighbours had not been joined as parties to the appeal from the Magistrate, relief by way of a declaration under s 75 of the Supreme Court Act 1970 was refused. Her Honour also noted that the fact that the real property search relied upon by the defendant did not reveal a recognised easement was not decisive of her neighbours' right of access to their property having regard to s 88K of the Conveyancing Act 1919. In dismissing the appeal, her Honour reasoned to the conclusion that the existence or nonexistence of the easement was, in any event, irrelevant to the question whether the defendant had breached the AVO. She held: [36] The existence or non-existence of an easement was not relevant to the Local Court's determination of whether the plaintiff had breached the AVO. The AVO included an order that the plaintiff not harass the persons in need of protection. In the Facts Sheet, Police asserted that the plaintiff had harassed the victims by blocking access to their property. The Magistrate accepted this evidence. There was no need to prove any breach of property rights. An AVO may be breached by the plaintiff even when she is within her own property. For example, if the plaintiff had yelled abuse at the victims while standing on her property, the AVO would have been breached, notwithstanding that the plaintiff was within her own property at the time the threats were made. [37] The plaintiff also appears to assert that the AVO itself was improperly made, and that, in these circumstances, she cannot be convicted of breaching it. The Local Court was entitled to proceed to conviction on the basis of the documents before the Court pursuant to s 199 of the Criminal Procedure Act. [38] It is my view that the Magistrate was entitled to find the offence proved and to sentence Mrs Viavattene. There is no error of law. ... [44] The grounds of appeal do not raise any question of law. Nor do they raise any questions of mixed fact or law for which leave ought to be granted. The result is that the appeal is dismissed. The decision of her Honour Magistrate Stafford dated 29 March 2012 is affirmed. The amended summons filed 14 May 2012 is dismissed. 60Given the disposition of the proceedings dealt with by Davies and Latham JJ, I am satisfied that the appeal heard and determined by Harrison AsJ (proceedings numbered 18 in the Schedule) was a vexatious proceeding having been instituted and pursued by the defendant without reasonable grounds. 61On 31 August 2012, the defendant applied for a grant of special leave to appeal to the High Court from the decision of Harrison AsJ. The application asserted that the survey which Davies J considered determinative was false (and a document that had been used by police to pervert the course of justice), based, it would seem, upon the defendant's unremitting view that because there was no registered easement on the title her neighbours had no right to access their land within the perimeter of what she claimed as her land. The application for special leave to appeal was refused. The Court noted that because the question of the easement would not conclude a finding that the AVO was contravened, an appeal would enjoy no prospect of success. 62Despite 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. 63Her 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.

Schedule of Chronological List of Proceedings Instituted and Conducted by the Defendant Legend of abbreviations contained in chronology HC High Court of Australia CCA New South Wales Court of Criminal Appeal CA New South Wales Court of Appeal SC New South Wales Supreme Court DC District Court LC Local Court CTTT Consumer, Trader and Tenancy Tribunal

Matter Number/ Forum Subject (proceedings) Date of outcome Outcome Date Commenced Proceedings initiated in the Local Court by or against the Defendant

2010/338082 LC Defendant seeks an AVO against Bruce Morton. 8/12/2010, 19/1/2010, 20/4/2011, 6/6/2011, 7/9/2011. Matter listed for mention on 5 separate occasions. On 7 September 2011 the matter was listed for hearing on 1 November 2011. [20/10/2010] 1/11/2011 Defendant applies for an adjournment due to lack of legal representation. Application granted but costs order made. Defendant appeals to the District Court against the costs order. (See matter No. 15 of this schedule). Interim AVO issued against Bruce Morton. Matter adjourned to 21 November 2011 to fix a hearing date. 21/11/2011 Defendant appeals to the District Court against the costs order. (See matter No. 15 of this schedule) 7/3/2012 Defendant claims to have mistakenly believed the matter was listed for hearing. Matter is listed for hearing on 7 March 2012. Mr O'Reilly appears for the defendant with instructions only to make an adjournment application. Application refused. Application for final orders dismissed. Defendant ordered to pay costs.
2011/37401 LC Prosecution commenced against the defendant for assault of Bruce Morton. 15/6/2011 No appearance by the defendant. Defendant convicted in her absence and fined $600 and ordered to pay court costs of $79. [7/11/2010] 20/7/2011 Defendant files an application for "annulment". Grounds of the application included: 3/8/2011 1.The orders were made in her absence. 23/8/2011 2.She was unaware of the Local Court proceedings. 3.She could not attend due to "accident/illness, misadventure or other circumstances" (not particularised or supported by evidence). 4.The interests of justice were claimed because "I had an AVO against Morton and he assaulted me and I am in need of protection". The application was listed for hearing on 3 August 2011. No appearance by the defendant. Application for annulment dismissed. Defendant ordered to pay costs in the amount of $725. Defendant files notice of appeal to the District Court. (See No. 12 of this schedule)
2011/130496 LC Prosecution commenced against the defendant for breach of an AVO, granted on an interim basis on 30 November 2010 [final orders made on 15 June 2011] and for resisting arrest. 4/5/2011 No appearance for the defendant. Matter adjourned to 8 June 2011 for hearing. [27/4/2011] 8/6/2011 No appearance for the defendant. Adjournment application made via email. Application refused. Defendant convicted in her absence, fined $500 and ordered to pay court costs of $79. 23/6/2011 Defendant files an application for "annulment". Grounds of the application include: 3/8/2011 1.The orders were made in her absence. 22/8/2011 2.She was unaware of the Local Court proceedings. (This is contradicted by her adjournment application made via email.) 3.She could not attend due to "accident, illness, misadventure or other circumstances" (not particularised or supported by evidence). 4.The interests of justice were claimed but no reason given. The application was listed for hearing on 3 August 2011. No appearance by defendant. Application dismissed. Defendant files notice of appeal to the District Court. (See matter No. 11 of this schedule)
2011/133242 LC Prosecution commenced against the defendant for further breach of an AVO granted for protection of Bruce Morton on an interim basis on 30 November 2010 together with a charge of resisting police. 8/6/2011 No appearance for the defendant. Adjournment application made via email. Application refused. Defendant is convicted in her absence. [27/4/2011] 23/6/2011 Defendant files an application for "annulment". Grounds for the application include: 3/8/2011 1.The orders were made in defendant's absence. 22/8/2011 2.She was unaware of the Local Court proceedings. 3.She could not attend due to "accident, illness, misadventure or other circumstances": (not particularised or supported by evidence). 4.The interests of justice were claimed but no reason given. The application was listed for hearing on 3 August 2011. No appearance by the defendant. Application dismissed. Defendant files notice of appeal to the District Court. (See matter No. 10 of this schedule)
2010/368043 LC Final orders for AVO sought by Bruce Morton against the defendant 15/6/2011 AVO issued against the defendant does not appear. [15/6/2011] 20/7/2011 Defendant applies for the AVO granted on 15 June 2011 to be revoked. Application listed for hearing on 3 August 2011. 3/8/2011 No appearance by the defendant. Application dismissed. 23/8/2011 Defendant files notice of appeal to the District Court. (See matter No. 13 of this schedule)
2011/235752 LC AVO sought by the defendant against Jamie Nicholson 21/7/2011 Matter listed for hearing on 3 August 2011. [21/7/2011] 3/8/2011 No appearance by the defendant. Application dismissed. 23/8/2011 Defendant files notice of appeal to the District Court on the grounds that "I contest the apprehended violence order made in these proceedings".
2011/317401 LC AVO sought by the defendant against Bruce Morton 19/10/2011 Matter listed for hearing on 1 November 2011. [23/9/2011] 1/11/2011 Defendant applies for an adjournment. Application granted. Defendant ordered to pay costs. Matter adjourned for mention on 21 November 2011. 21/11/2011 Defendant claims to have mistakenly believed the matter was listed for hearing. Request for a hearing is refused. Matter is listed for hearing on 7 March 2012. 7/3/2012 Mr O'Reilly appears on behalf of the defendant with instructions to make an adjournment application. Application refused. Application for AVO is dismissed.
2011/318455 LC AVO sought by the defendant against Evelyn Birch 19/10/2011 Matter adjourned to 1 November 2011. [23/9/2011] 1/11/2011 Defendant applies for an adjournment. Application granted. Defendant ordered to pay costs. Matter adjourned for mention on 21 November 2011. 1/11/2011 Defendant appeals the costs order to the District Court. (See matter No. 16 of this schedule) 21/11/2011 Defendant claims to have mistakenly believed the matter was listed for hearing. Request for a hearing is refused. Matter is listed for hearing on 7 March 2012. 7/3/2012 Mr O'Reilly appears for the defendant with instructions to make an adjournment application. Application refused. Application for AVO is dismissed.
2011/391692 LC Prosecution commenced against the defendant for breach of AVO, issued against the defendant on 15 June 2011 (See matter No. 5 of this schedule) 18/1/2012 Mr Hughes appears for the defendant. She enters a plea of not guilty. Matter adjourned for mention to 29 February 2012. [18/1/2012] 29/2/2012 Matter listed for hearing on 29 March 2012. 29/3/2012 Mr Hughes appears on behalf of the defendant with instructions to make an adjournment application. Application is refused. Hughes withdraws. The defendant is convicted in her absence of breach, fined $1,100 and ordered to pay court costs of $81. 16/4/2012 Defendant files Summons in the Supreme Court appealing the conviction (and seeking other relief). (See No. 18 of this schedule) Appeals from the Local Court to the District Court initiated by the Defendant
2011/133242 DC Appeal by the defendant to the District Court from the decision of the Local Court on 3 August 2011 (See matter No. 4 of this schedule) 22/8/2011 Defendant filed a Notice of Appeal to the District Court. [22/8/2011] 9/2/2012 Hearing listed before Murrell J. No appearance by the defendant. Appeal dismissed.
2011/130496 DC Appeal by the defendant to the District Court following the decision handed down by the Local Court on 3 August 2011 (See matter No. 3 of this schedule) 22/8/2011 Defendant filed a Notice of Appeal to the District Court. [22/8/2012] 9/2/2012 Hearing listed before Murrell J. No appearance by the defendant. Appeal dismissed.
2011/37401 DC Appeal to the District Court from the decision handed down by the Local Court on 3 August 2011. (See matter No. 2 of this schedule) 23/8/2011 Defendant filed a Notice of Appeal to the District Court. [23/8/2011] 9/2/2012 Hearing listed before Murrell J. No appearance by the defendant. Appeal dismissed.
2010/368043 DC Appeal by the defendant to the District Court following the decision handed down by the Local Court on 3 August 2011. (See matter No. 5 of this schedule) 23/8/2011 Defendant filed a Notice of Appeal to the District Court. [23/8/2011] 9/2/2012 Hearing listed before Murrell J. No appearance by the defendant. Appeal dismissed.
2011/235752 DC Appeal by the defendant to the District Court following the decision handed down by the Local Court on 3 August 2011. (See matter No. 6 of this schedule) 23/8/2011 Defendant filed a Notice of Appeal to the District Court. [23/8/2011] 9/2/2012 Hearing listed before Murrell J. No appearance by the defendant. Appeal dismissed.
2010/338082 DC Costs Appeal by the defendant to the District Court following the decision handed down by the Local Court on 1 November 2011. (See matter No. 1 of this schedule) 14/11/2012 Matter adjourned for hearing to 9 February 2012. [1/11/2011] 9/2/2012 Hearing listed before Murrell J. No appearance by the defendant. Costs appeal dismissed.
2011/318455 DC Costs Appeal by the defendant to the District Court following the decision handed down by the Local Court on 1 November 2011. (See matter No. 8 of this schedule) 14/11/2012 Matter adjourned for hearing to 9 February 2012. [1/11/2011] 9/2/2012 Hearing listed before Murrell J. No appearance by the defendant. Costs appeal dismissed.

                                                                                                                                    CCA    Appeal to the CCA alleged to have been made by the defendant in letters to Murrell J on 5 March 2012. No notice of intention to appeal filed.                                                                                   N/A                                                   N/A

Appeals from the Local Court to the Supreme Court and to the High Court initiated by the Defendant 18. 2012/117819 SC Appeal by the Defendant to the Supreme Court from the decision of the Local Court on 29 March 2012 in matter 2011/391692 (See matter No. 9 of this schedule) 16/4/2012 Defendant filed Summons commencing an appeal in the Supreme Court. [16/4/2012] 15/5/2012 Defendant filed Amended Summons naming Snr. Constable Davison and Sergeant Thierjung as first and second defendants. Matter listed for hearing on 31 July 2012. 31/7/2012 Hearing before Harrison AsJ. 9/8/2012 Harrison AsJ dismissed the summons and refused other relief: Viavattene v Davison [2012] NSWSC 901 19. 2012/5238 HC Application for special leave to appeal to the High Court from the decision of Harrison AsJ of 9 August 2012. 31/8/2012 Defendant filed application for special leave to appeal to the High Court. [31/8/2012] 12/12/2012 High Court dismissed the application noting that an appeal would enjoy no prospects of success: Viavattene v Davison [2012] HCASL 192 Proceedings initiated in the Supreme Court by the Defendant 20. 2011/152708 SC Proceedings commenced by the defendant's husband against Bruce Morton and Evelyn Birch seeking injunctive relief. 17/5/2011 Notice of Motion filed seeking referral for pro-bono assistance. [10/5/2011] Proceedings commenced by both the defendant and her husband against Bruce Morton and Evelyn Birch seeking (in addition to injunctive relief) damages of $130,690 and "economic and non-economic compensation" of $1.5 million. 27/5/2011 McCallum J refers the proceedings to a barrister or solicitor on the pro bono panel. 21. 2011/162069 7/6/2011 Listed before Kirby J. The matter is listed for directions on 14 June 2011. [17/5/2011] 14/6/2011 Matter listed for directions on 18 July 2011. 19/7/2011 Hearing of application for interim injunctive relief before Davies J. Application refused. 29/8/2011 Notice of Motion filed by the defendant seeking to join additional Defendants. 9/9/2011 Notice of Motion filed by Morton and Birch for orders that both proceedings be dismissed or struck out, and/or security for costs. 19/9/2011 Hearing before Latham J. Notice of Motion stood over to 21 September 2011 for new legal representatives to be instructed. 21/9/2011 Hearing before Latham J. Defendant makes an adjournment application. Application refused. 22/9/2011 Statement of Claim struck out in part, summary dismissal refused. Order that the defendant provide security for costs. 3/11/2011 Defendant files Notice of Motion seeking further time to file an Amended Statement of Claim. 22. 2011/152708 CA Appeal by the defendant to the Court of Appeal from the decisions of Davies and Latham JJ. 7/11/2011 Hearing before Tobias AJA. The defendants to file an Amended Statement of Claim and Summons by 14 December 2011. Matter listed for mention on 15 December 2011. 2011/162069 11/11/2011 Orders made by the NSW Court of Appeal listing the matter for Directions on 14 December 2011. [3/11/11] 14/12/2011 Appeal is discontinued. Conduct of the proceedings for orders under the Act. Plaintiff filed summons seeking orders under the Vexatious Proceedings Act. 29/5/2012 23. 2012/169892 SC Defendant files Notice of Motion seeking to strike out the proceedings 4/7/2012 Defendant filed Notice of Motion seeking to strike out the proceedings brought by the AG. [4/7/2012] 31/7/2012 Defendant filed Notice of Constitutional Matter in addition to Notice of Motion. 31/7/2012 Hearing of Notice of Motion before Harrison AsJ. 9/8/2012 Judgment delivered. Notice of Motion and Notice of Constitutional Matter dismissed: Attorney-General v Viavattene [2012] NSWSC 902 24. 2012/5238 HC Application for special leave to appeal to the High Court the decision of Harrison AsJ handed down on 9 August 2012. 31/8/2012 Defendant filed application for special leave to appeal to the High Court. [31/8/2012] 12/12/2012 High Court dismissed the application. The application was premature since leave to appeal to the Court of Appeal had not been sought and that an appeal would not enjoy sufficient prospects of success to warrant a grant of leave: Viavattene [2012] HCASL 191

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