Viavattene v Morton and Ors

Mr Viavatenne's show cause argument

1. Turning now to the show cause question, Mr Viavattene submits that "it is all about [the] administrative process". He says that as the defendants have failed to appear in court and have failed to provide a defence, which he says contravenes previous orders made by both Rothman J and Garling J he should be entitled to default judgment. He argues that the case has thereby moved beyond questions of competence of the appeal.
2. The defendant's failure to appear in court or provide a defence does not, in any way shape or form, affect the competency of his appeal or, in other words does not show cause as to why Mr Viavattene's appeal should not be dismissed as incompetent. This is because, contrary to Mr Viavattene's argument, a defendant in an appeal is not required to appear in court or file a defence under pain of losing by default without any consideration of the merits of the appeal. There is no provision for default judgment in Pt 50 UCPR dealing with appeals to this Court from, inter alia, the Local Court. Default judgment under the UCPR is available only in "proceedings commenced by statement of claim": r 16.1.
3. I asked Mr Viavattene whether he wished to address the question I had raised in my previous judgment (at [23]) about whether an appeal from the decision of Magistrate O'Brien had to be brought in the District Court of New South Wales under s 84 CDPV Act. His reply was somewhat confusing but seemed to be along the lines that that Act has no application to this appeal as he has appealed directly to the Supreme Court on an error of law being that the Magistrate took no regard of the Act (4.25T).

Decision on competence of the appeal

1. In a recent decision, Application by Michael Bar-Mordecai [2015] NSWSC 1695, I set out in detail the relevant statutory provisions which govern an appeal from an AVO decision in the Local Court (at [19] - [22]): [19] Appeals by their very nature are creatures of statute. As Dixon J (as the Chief Justice then was) aptly stated in Grierson v The King [1938] HCA 45; 60 CLR 431, "[an] appeal is not a common law remedy, and proceedings at law are only subject to that remedy by statute" (at 436). There is no right therefore at common law which exists independently to give this Court or indeed any court a general appellate jurisdiction from decisions of lower courts. I put to one side the Court's original, supervisory jurisdiction not sought to be invoked here. Rights of appeal and a court's appellate jurisdiction must be sourced to express, statutory provisions. [20] There is no doubt that [Local Court] was exercising power under s 73 Crimes (Domestic and Personal Violence) Act 2007 (NSW) (CDPV Act) to vary the existing AVO made [previously] by extending the period during which the order is to remain in force. Section 84(2)(c) provides that an appeal may be made to the District Court, inter alia, "by a party to an [AVO] against the variation…of the order by the Local Court". It is this section therefore which confers any right Mr Bar-Mordecai may have to appeal from the orders of [the Local Court]. Section 84(3)(a) provides that an appeal under ss (2): 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 s 84(4): The Crimes (Appeal and Review) Act 2001 applies to an application or appeal arising under this section with such modifications as are made by or in accordance with the regulations under that Act. No regulations have been made under the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act). [21] As the language makes clear, the right of appeal created and conferred by s 84 operates by incorporating some provisions of CAR Act in CDPV Act. The effect of ss 84(3)(a) and 84(4) is that procedurally an appeal from an AVO variation made by the Local Court is treated like an appeal against conviction under Pt 3 CAR Act. The appeal court is empowered to deal with an AVO variation appeal "in the same way as" an appeal against conviction made under Pt 3 CAR Act. [22] Part 3 of the CAR Act is concerned with appeals from the Local Court to the District Court in criminal matters. Within Pt 3, Division 1 deals with appeals by defendants in criminal cases, and Subdivision 1 contains the machinery for the making of appeals. It is under this subdivision that s 11, dealing with appeals as of right, is found. So we see here again it is the statute which confers the right of appeal from the Local Court to the District Court in these matters; and a different statute, CDPV Act, creates a right of appeal "against" an AVO variation, and does so by incorporating the provisions of Part 3 CAR Act. However it is CDPV Act which speaks to appeals from orders made under it, not the CAR Act per se. Whilst that decision dealt with an appeal from an AVO variation under s 84(2)(c), the same statutory provisions and the same principles apply to an appeal from a dismissal of an AVO application by the Local Court under s 84(2)(a1), the provision applicable in Mr Viavattene's case.
2. It follows from this analysis that this appeal has not been bought in conformity with the relevant statuory provisions. The Supreme Court is not empowered (putting to one side the Court's original, supervisory jurisdiction not sought to be invoked here) under the express statutory provisions as set out above to entertain the appeal brought by Mr Viavattene.
3. Moreover, the specific right of appeal conferred under the CDPV Act displaces in AVO cases the general appeal right in civil cases that Mr Viavattene has sought to invoke under s 39 Local Court Act 2007 (NSW). And similarly Mr Viavattene's reliance on s 52 Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act) is misplaced as: first, s 84 incorporates Pt 3 not Pt 5 CAR Act; and secondly, he is not "a person who has been convicted or sentenced by the Local Court" to found an appeal under s 52, which he invokes.
4. His reliance on each of ss 60, 62 and 68(a) Supreme Court Act 1970 (NSW) is also misplaced. These sections do not confer any right of appeal. Rather they are concerned predominately with the nature of the courts power to grant remedies in the exercise, principally, of its original jurisdiction as a court of judicature administering law and equity together.
5. I would like to say finally, that I do have sympathy for Mr Viavattene's frustration at the failure of the defendants to participate in the proceedings beyond filing a notice of appearance, not a submitting appearance, on behalf of the first and second defendants. Mr Viavattene argues the defendants are "showing contempt for the Supreme Court. They don't even have the decency to turn up and show respect" to the court. There is substance in this complaint. The defendants have simply ignored the proceedings. Given that they have not filed submitting appearances they were obliged to comply with the Court's orders and directions. However that may be, their failure to engage in these proceedings does not render the incompetent, competent. Accordingly, as Mr Viavattene has failed to show cause why his appeal should not be dismissed as incompetent I must dismiss it.
6. My order is the appeal is dismissed as incompetent.

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: 11 December 2015