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:
4. In the interim, pursuant to s 23 of the Supreme Court Act and otherwise, Order that the defendants or each of them not communicate directly or indirectly except through legal advisors with the plaintiff or the plaintiff's family nor approach, contact, assault, molest, harass or otherwise interfere with the plaintiff nor incite any other person so to do. Such order to stand until further direction of the registrar or order of the Court.
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To Bruce Moreton, Evelyn Birch and Kevin Cheetham: if you disobey paragraph 4 of this order you will be liable to sequestration of property and to imprisonment.
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.
[2]
Vexatious Proceedings Act
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:
Mr Viavattene is prohibited from instituting proceedings in New South Wales which are inconsistent with the finding that, following its realignment in about 11November 2010, the access track to adjoining land no longer encroaches upon the property known as 1520 Numinbah Road, Chillingham.
Section 8(7) of the Act provides as follows:
8 Order that may be made by Supreme Court
…
The Supreme Court may make any one or more of the following vexatious proceedings orders in relation to a person:
(a) an order staying all or part of any proceedings in New South Wales already instituted by the person,
(b) an order prohibiting the person from instituting proceedings in New South Wales,
(c) any other order that the Court considers appropriate in relation to the person. (Emphasis added)
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)
13 Contravention of vexatious proceedings order prohibiting institution of proceedings
(1) If an authorised court makes a vexatious proceedings order prohibiting a person from instituting proceedings:
(a) the person may not institute proceedings of the kind to which the order relates without the leave of an appropriate authorised court under section 16, and
(b) another person may not, acting in concert with the person, institute proceedings without the leave of an appropriate authorised court under section 16.
(2) If proceedings are instituted in contravention of subsection (1), the proceedings are stayed until they are dismissed (or taken to be dismissed) under this section.
[3]
Issues
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.
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.
[4]
The Local Court appeal and the proposed notice of motion
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.
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:
An order or direction that the police are to protect property and persons at 1520 Numinbah Road Chillingham to stop vehicle trespass and further harm to the Viavattene family.
Grounds 40 to 45 relate to this matter. For instance Ground 40 is in the following terms:
Magistrate O'Brien did not consider the Certificate of Title Search and Deposited Plan of my Torrens Title - Folio No: 2/578567 that shows there is no road or easement through or over my property (being lot 2 in DP 578567 at 1520 Numinbah Road Chillingham NSW) registered on Title.
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:
It is unlawful, unjust and a denial of our lawful and equitable rights to be arbitrarily removed from a Torrens title property that has no registered right of access or easement registered on title (s 42(1) & 42(3) of the Real Property Act 1900) to allow our neighbours Evelyn Birch and Bruce Morton to steel [sic] our land and criminally trespass on our property, approach, harass, molest and incite others to use their vehicles to intimidate and approach, assault and interfere with the Viavattene family ….
That contention goes on to submit that such conduct is, inter alia, in breach of the order made by Rothman J on 25th June 2013.
[5]
The Court of Appeal's decision
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:
[50] A fair description of the 1st-14th local court proceedings is that in the period between 3 November 2010 and 20 April 2011, some 14 separately numbered proceedings were commenced in the Local Court. All arose out of Mr and Mrs Viavattene's claim that they were entitled to exclusive possession of the whole of their land, including the access road notwithstanding the realignment which took place on 11 November 2010. Five of those proceedings (the 2nd, 8th, 9th, 10th and 13th) were applications for AVOs brought by Mr and Mrs Viavattene. The remaining nine related to an application for an AVO against Mr Viavattene, and subsequent prosecutions for contravention of that AVO (and its successors) and for common assault, larceny and malicious damage and resisting an officer in the execution of his duty, all arising out of the same factual substratum. The litigation had these common features.
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[52] The 15th-21st Local Court proceedings may fairly be summarised as follows. Between 24 December 2012 and 17 May 2013, Mr Viavattene sought to apply for or vary AVOs against Mr Morton, his partner Ms Birch, Mr Nicholson, and Mr Cheetham. Those people were neighbours who used the (re-aligned) access road. Again there was a pattern of Mr Viavattene not appearing and the applications being dismissed. Again, the subject matter of those applications concerned Mr Viavattene's claim that people were trespassing on his land.
It is also germane to set out Bellew J's summary of the present proceedings, which is as follows:
[112] On 17 May 2013 the defendant made application for an AVO against Morton. The application included the following statement:
"Bruce Morton needs to provide evidence to the court that he can lawfully trespass through our Torrens Title that has no access registered on title and commit crimes against the Viavattene children."
[113] On 4 June 2013 the matter came before Magistrate O'Brien at the Downing Centre Local Court and the transcript of those proceedings is in evidence before me. Whilst I do not propose to set out the entirety of what was said on that occasion, the transcript records the defendant repeatedly seeking to raise matters which were irrelevant to the issue before the court. In particular, and in the course of various exchanges with the Magistrate, the defendant asserted that:
(i) police in and around northern NSW were "paid off", necessitating the application being brought in Sydney;
(ii) he had reported Magistrate Dakin to the Judicial Commission of NSW for misconduct;
(iii) he had been forced to report police misconduct to "Professional Standards"; and
(iv) police had refused to investigate his complaints.
[114] His Honour reached the following conclusion:
"I could not say that this application were (sic) vexatious. However, I am satisfied that the matters relied upon are frivolous and that the application has no reasonable prospect of success. That being the case, and that being the conclusion that I have drawn from the material, the orders that I propose to make are that I decline to allow the filing of the application and confirm the decision of the Registrar."
[115] Following the Magistrate's determination, the transcript records the defendant stating:
"Are you serious?"
[116] On 12 June 2013 the defendant filed a summons in this court commencing an appeal against the decision of Magistrate O'Brien. The defendant's affidavit in support of the summons enumerated no less than 26 orders which were sought, at least some of which had no relationship whatsoever to the determination which was the subject of the proposed appeal.
[117] The matter came before Rothman J on 25 June 2013 at which time his Honour made orders (inter alia) referring the matter to the Registrar.
[118] The defendant then filed a notice of motion seeking a total of 18 further orders along with an order for damages. The notice of motion asserted (inter alia) that Morton, Birch and Cheetham were in contempt of court.
[119] There is no evidence as to the outcome of these proceedings.
I observe there was no evidence as to the outcome of the "21st Local Court Proceedings" before Bellew J because they remain unresolved. That is to say, they are still pending in this Court.
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:
[74] Mr Viavattene does not accept that the access road has been validly realigned. That issue was determined adversely to him by Davies J in 2011, in circumstances where there was expert evidence from a surveyor, and no expert evidence from Mr Viavattene. An application for leave to appeal from that decision was discontinued. The same issue has also been determined adversely to him by the reserved judgment of Barr AJ in 2013, and by the decision of this Court on appeal from that judgment. It is plain from the material that the same issue lies behind the vast majority of the litigation in the Local Court, which has also been determined adversely to him.
[75] When the appeal was heard, Mr Viavattene maintained his position, as follows:
"BEAZLEY P: That case is over, is it not?
APPELLANT: No, that case has never been judged in its entirety and it has never been based on the facts of a Torrens title, on the fact that it is criminal law to say that someone has access through your property when it is a Torrens title and if it's not registered on the title it does not exist. That's the fundamental principle of this whole argument of why every appeal in the Courts that were filed, and why the Attorney General made up the fact that I was vexatious, when purely I was just trying to appeal criminal matters in relation to trying prove the fact that if it's not registered on title it does not exist."
[76] Mr Viavattene's view may be genuinely held, but it is wrong. On the survey evidence before this Court, there has not been, for years, an access track over Mr Viavattene's and his wife's land. It remains open, in theory, for him to supply evidence calling into question the survey, although I have no reason to doubt its accuracy, in support of an application for leave. But all litigants are bound by well-established principles of res judicata and issue estoppel, and it is vexatious for Mr Viavattene to continue to bring proceedings inconsistent with numerous decisions of courts on this issue. His doing so, repeatedly over the last four years, enlivens the power under [the Act] and warrants its exercise.
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.
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.
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.
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.
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.
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:
84 Review and appeal provisions concerning making etc of apprehended violence orders
(2) An appeal may be made to the District Court:
…
(a1) by the applicant for an apprehended violence order (or, if the applicant was a police officer, either the applicant or the person for whose protection the order would have been made) against the dismissal of the application by the Local Court or the Children's Court, or
…
(3) An appeal under subsection (2):
(a) may be made under Part 3 of the Crimes (Appeal and Review) Act 2001 in the same way as an application may be made under that Part by a defendant against a conviction arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986, and
(b) may be made only by leave of the District Court in the case of an appeal against the making of an apprehended violence order that was made with the consent of the defendant.
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.
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.
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.
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.
For these reasons my orders are:
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. Subject to order 3, under s 8(7)(a) of the Act stay these proceedings;
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. Direct the Registrar to give notice of these orders to the defendants.
[6]
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Decision last updated: 13 November 2015