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[2013] NSWSC 838
Supreme Court of NSW
2013-06-12
Barr AJ
Original judgment source is linked above.
A Short Chronology 1The plaintiff, Peter Stephen Viavattene, seeks an extension of time within which to seek leave to appeal, and leave to appeal, against convictions entered and fines imposed in the Local Court. 2The plaintiff and his wife, Beverly Georgina Viavattene, are the owners of a parcel of land in Chillingham, New South Wales, Lot 2 in Deposited Plan xxxx67. The postal address is xxxx xxxxx Road Chillingham. The western side of their land faces xxxxx Road. Just south of the plaintiff's land an access road, really just a dirt track, runs off xxxxx Road on its eastern side, turns north and runs roughly parallel to the western side of the plaintiff's land and onto the next parcel of land to the north, which I will call Lot 3. The postal address of that land is xxxx xxxxx Road, Chillingham. 3The plaintiff believed that the access road cut across his land. He complained about it and placed obstacles on it. Correspondence ensued between him and the first defendant, the Tweed Shire Council (the Council). On 7 October 2010 a surveyor visited the site, drew up a plan and concluded that the access road did indeed cut across the north western corner of Lot 2. A copy of the plan is exhibited, at Tab 28, to the affidavit of Kirston Marie Gerathy. 4On 12 October 2010 the Council wrote to the plaintiff and Mrs Viavettene in these terms- Shared Access Driveway to xxxx and xxxx xxxxx Road I refer to an onsite visit attended by Council's Mr Trevor Harris at the request of the owner of xxxx xxxxx Road regarding the above matter. A survey undertaken by professional surveyors organised by the owners of xxxx xxxxxx Road indicated a small encroachment of the access driveway onto your property at the far north western corner. Mr Harris was contacted to assist in possible driveway treatment options to resolve the encroachment issue. Mr Harris arrived onsite to provide driveway advice. The subsequent onsite events, verbal discussions and gestures made by persons present were very intimidating and threatening, according to Mr Harris. These events and verbal discussions have been noted on Council's file. As part of Mr Harris's visit to the site it was found that star pickets and wire have been erected on the road reserve without Council authorisation. Council surveyors subsequently placed survey pegs to determine and confirm the road reserve boundary. These survey pegs have since been removed by persons unknown. The survey confirmed that the star pickets and wire are located in the road reserve. You are therefore requested to remove the star pickets and wire fencing installed in the road reserve immediately. Failure to comply with this directive will result in these works being undertaken by Council staff at your expense. 5The Council began issuing penalty infringement notices. I shall refer to them later. 6The Council wrote again on 5 November 2010 as follows - Access Driveway within xxxx Road reserve at Chillingham Council refers to the various site visits arising from the ongoing dispute in relation to the use of the shared access track. It is our view, as a result of survey investigation by one of Council's registered surveyors, that most of the access track is within the road reserve of xxxxx Road and that a small part of the track encroaches onto your property, Lot 2 in DPxxxx67. The attached plan prepared by our surveyor clearly shows the location of the track in red. It should be noted by you that the road reserve of xxxxx Road in front of your property has an approximate width of 32.5 metres and that the bitumen formation of xxxxx Road has a width of approximately 5.5 metres. The distance between the western edge of the bitumen surface to your front boundary is a distance of approximately 18.5 metres. It is within this 18.5 metre corridor that the shared access track is located. The owners of Lot 3 to the north have obtained a section 138 approval to construct an access driveway within the road reserve to access their property directly and Council as the roads authority has issued that approval. Such approval gives the owners of Lot 3 every legal right to proceed with the construction of the access driveway. Such works will then place the access driveway wholly within the road reserve. Should any further obstructions be placed within the road reserve corridor, we put you on notice that Council will continue to issue penalty infringement notices. 7The Council wrote again on 19 November 2010 in these terms- Road Reserve xxxxx Road, Chillingham Council has been advised that the access driveway to the neighbouring property, xxxx xxxxx Road, was constructed yesterday, and that the driveway is within the road reserve. These works have been completed in accordance with an application under Section 138 of the Roads Act 1993 that has been approved by Council. The new gate providing entry to xxxx xxxxx Road is wholly within their private land. Council's registered surveyor pegged the boundary to establish the boundary between private land and the road reserve to enable the access driveway to be correctly located within the road reserve. It is suggested that should you disagree with the boundary determination made by our registered surveyor, you should engage another registered surveyor to peg your property boundaries to determine if there is any variance with the boundary determination. Until you have engaged a registered surveyor to establish the property boundaries, and unless such surveyor establishes that there is an error in Council's survey you have no evidence to validate your strong belief that the access driveway is on your private land. As Council has surveyed the boundary by a registered surveyor and holds the relevant data to show that the access driveway is now totally within the road reserve the continued placement of objects on the driveway, removal/shifting of gravel from the driveway and the removal of survey pegs from the road reserve will compel Council to issue further penalty infringement notices each time we have been notified that these offences under the Roads Act 1993 have occurred. It is strongly suggested that you seek independent survey advice to clarify the location of the property boundaries of your property. 8There was further correspondence with a number of repeated themes. The plaintiff and Mrs Viavattene never accepted that the access road had ceased to encroach on their land. The Council suggested that they engage their own surveyor for an opinion on the matter and suggested how the dispute might then be dealt with. The Council required them to stop obstructing the access road. 9The penalty notices issued by the Council were for asserted infringements of Division 3 Clause 11 (1) (b) of the Roads Regulation 2008, in placing on a road anything likely to restrict or endanger the use of the road by the public or interfere with public convenience. The first, served under cover of a letter of 15 November 2010, was for an asserted infringement on 28 October 2010. Seven further notices were given under cover of a letter of 22 November 2010, dealing with asserted infringements on 11 November, 18 November, 19 November (3 infringements) and 20 November (2 infringements). The last notice, served under cover of a letter of 3 December 2010, was for an asserted infringement on that day. The total amount claimed to be payable as a penalty was $4,140. 10On 19 December 2010 the plaintiff was convicted in his absence at the Local Court at Murwillumbah. Enforcement orders issued in due course. 11On 10 May 2011 the plaintiff applied for an annulment of the fines. On the same day he filed a summons in this Court seeking an urgent injunction restraining the owners of Lot 3 from trespassing on his land. In substance the plaintiff was asserting that the defendants were trespassing by using the access road to enter their land. On 17 May 2011 the plaintiff and Mrs Viavattene jointly filed a Statement of Claim seeking an injunction, among other orders, against the same defendants. On 7 June 2011 Kirby J declined to grant an injunction pending hearing. On 19 July 2011 Davies J declined to grant interlocutory relief. 12The plaintiff and Mrs Viavattene appealed to the Court of Appeal against the orders of Davies J but later discontinued that proceedings. 13On 16 August 2011 the plaintiff's annulment application was granted and the hearing of the charges alleging that the plaintiff had placed things on the road contrary to cl 11(1)(b) were listed for hearing on the 9 November 2011. On 7 November 2011 the plaintiff applied for an adjournment, and the adjournment was refused on the following day. However, on the day of hearing, when the plaintiff failed to appear, the matters were stood over to 19 December 2011. On 8 December 2011 the plaintiff made a further application to adjourn the hearing. On 12 December 2011 he was informed by the Local Court that the adjournment application was refused. The plaintiff made a further application on that day. 14On 18 December 2011 the plaintiff sent written arguments to the Local Court asserting that the access road was on his land and that his neighbours were therefore trespassing on his land. 15On 19 December 2011 the plaintiff did not appear and was convicted in his absence. 16On 21 December 2011 he made an annulment application to the Local Court. That was listed for hearing on the 8 February 2012. The plaintiff was informed by letter of 9 January 2012. 17On 8 February 2012 the plaintiff failed to appear and his annulment application was dismissed. 18On 7 March 2013 the plaintiff made a further annulment application in the Local Court and on 3 April 2013 the application was dismissed. 19Whenever the Local Court dealt with the nine infringement notices it did so en bloc. Similarly, applications for annulment were dealt with without discriminating between asserted infringements. 20When a defendant charged with an offence fails to appear before the Local Court, and where the Court is satisfied that the defendant had notice of the proceedings, the Court may at its discretion hear the matter in the absence of the defendant: Criminal Procedure Act 1986 s196. By s199 the Court may determine proceedings on the basis of the Court Attendance Notice without hearing the Prosecutor's witnesses or any other additional evidence if it is of the opinion that the matters set forth in the Court Attendance Notice are sufficient to establish the offence. 21A conviction resulting in that way may be annulled: the Act s 4. 22The transcript of the proceedings in the Local Court shows that the Magistrate heard no evidence additional to the infringement notices, convicted the plaintiff of each offence and imposed the maximum fine for each offence.
The Orders Sought 23The plaintiff filed his Summons seeking leave to appeal on 26 April 2013. The Summons runs to 12 pages and contains much inappropriate material, included repeated assertions of fact and legal argument. I apprehend that the plaintiff drafted the Summons himself. He is not professionally equipped to undertake such a task. Nevertheless, it appeared as though his principal complaint was about the convictions and the consequent penalties imposed. The Council was in a position to respond to the Summons on that understanding and I dealt with it as raising appeals against the relevant convictions and sentences. 24The plaintiff brings his appeal under s 53 Crimes (Appeal and Review) Act 2001 (the Act). It involves a question of fact or a question of mixed law and fact, so the plaintiff needs leave to appeal: s 53(1) (a), (b). By s53 (4) the application for leave must be brought within the time limited by the Rules. By Rule 6 Supreme Court Rules the time limited is 28 days after the material date. That was 19 December 2011, the day on which the Local Court convicted the plaintiff and fined him. The plaintiff is out of time and seeks an extension of time. 25By s 55 of the Act - (1) The Supreme Court may determine an appeal against conviction: (a) by setting aside the conviction, or (b) by setting aside the conviction and remitting the matter to the Local Court sitting at the place at which the original Local Court proceedings were held for redetermination in accordance with the Supreme Court's directions, or (c) by dismissing the appeal. (2) The Supreme Court may determine an appeal against sentence: (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by setting aside the sentence and remitting the matter to the Local Court sitting at the place at which the original Local Court proceedings were held for redetermination, in relation to sentence, in accordance with the Supreme Court's directions, or (d) by dismissing the appeal. ...
The Infringement Notices 26Each of the nine infringement notices was set out in a standard form entitled Part A Electronic Penalty Notice. There were panels for information to be inserted. Provision was made for the name of the person concerned and the address to be inserted. In a panel below that there was provision for insertion of the offence time and the offence day and date. Also the street and suburb of the offence. 27In a panel below that there was provision for the insertion of an offence code and the short title of the offence; also the penalty amount and, among other things, the name of the issuing officer and the issuing authority. 28The lowest panel on the form was entitled "Notes: ". 29The first notice bore an infringement number 3021130375 and set out the name and address of the plaintiff. It stated the time, day and date of the offence as 9:12am on Thursday 28 October 2010. The short title of the offence was stated as "place on road thing likely to restrict/endanger road use/interfere with public". The penalty amount was stated to be 460. 30After 'Notes' appeared this- Council has asked offender not to block access road to neigh (sic) 31Mr Johnson, for the Council, tendered in this Court a bundle of documents extracted from the Council's records, comprising the infringement notices and associated documents. The bundle is Exhibit 8. The documents relating to the offence charged on 28 October 2010 include a photograph bearing that date. The photograph may be better understood by comparison with the Survey Plan made by Mr Liddell on 7 October 2010. This document shows that the access track ran northwards from Numinbah Road near the western boundary of Lot 2. At a point about level with the southern boundary of Lot 2 there was a power pole (the southern power pole) about half way between the eastern edge of the access road and the western boundary of Lot 2. Further north there was another (the northern power pole) standing between the western edge of the access road and the formed-up, sealed part of Numinbah Road. At that point the eastern edge of the access road tended to the east and ran onto Lot 2. A little further north the western edge crossed the boundary as well, with the result that the access road was wholly on Lot 2 for a short distance until it reached the gate to Lot 3. By reference to the Survey Plan, which came from the Council's records, it was not possible for a person to obtain access to Lot 3 by using the access road without trespassing on Lot 2. 32The photograph, taken looking south, shows that there is attached by one end to the southern power pole an orange plastic mesh curtain of the kind commonly found fencing off road works and guarding hazardous places. One end adheres to the pole and the rest of the curtain is hanging or lying at the foot of the pole. 33The survey plan shows that the southern pole was well to the south of the most southerly point at which the access road encroached on the plaintiff's land. Judging by the particulars supplied in the infringement notice, it must have been the Council's case that the curtain originally restricted passage along the access road, but that is not a conclusion one could draw beyond reasonable doubt on the evidence of the photograph. To establish that conclusion the Council ought to have an opportunity to adduce further evidence. 34The second infringement notice was number 3021165905. The infringement was asserted to have been committed at 3:39pm on Thursday 11 November 2010. After 'Notes:' there was this- attended Council's road access observed Mr Viavattene place P (sic) 35The documents pertaining to the second infringement notice include two photographs bearing the date 11 November 2010 and the times 15:39:42 and 15:35:43.The first photograph shows a man in the vicinity of what looks like a hole with a tree trunk standing in it, though it does not appear to be in the access road or particularly close to it. It would not obstruct anyone trying to use the road. The other photograph is a view along the access road looking northwards, with the plaintiff's building in the middle distance on the right. About opposite the plaintiff's building are two garbage bins. Beyond them, apparently attached by one end to the northern power pole, is an orange plastic curtain like the one shown in the photograph relative to the first infringement notice. This one, however, is stretched right across the access road and would stop anyone travelling any further north along the access road. 36An owner of land may take all lawful measures, to prevent persons from entering that land. A common enough way of doing this is to fence land. If the plaintiff had fenced his boundary neither the owners of Lot 3 nor the Council would have had any proper cause for complaint. If the orange curtain were placed in the position shown in the photograph before the realignment of the access road neither would have had any proper cause for complaint. 37Mr Johnson, read over the plaintiff's objection the affidavit of Barry Richard Green, a registered surveyor. He deposed to having surveyed the gravel access road in June 2011. He prepared a plan. The plan shows that after its realignment the access road ceased to encroach on the plaintiff's land. 38The plaintiff objected to the reading of the Affidavit first because it was served after the time limited for the service of affidavits. However, I was satisfied that late service had been explained and that the plaintiff had not suffered on that account. He had never attempted to obtain expert evidence of his own and would not have done so if he had received Mr Green's Affidavit earlier than he did. Moreover, he had consented after service to the fixing of a date for hearing. 39The plaintiff's only other objection to the evidence was by an assertion that it was false. That was a claim made repeatedly and I found it of no assistance. 40The evidence satisfies me that the plaintiff would have had no justification for blocking the access road or restricting its use or interfering with members of the public wishing to use it at any time after the realignment, which I am satisfied took place on 11 November 2010. 41Although the parties were different in the proceedings held before Kirby J and Davies J the issue was the same, namely whether the access road encroached on the plaintiff's land. I note that the proceedings before their Honours were commenced after the realignment of 11 November 2010. 42Mr Johnson submitted that the plaintiff should not be permitted to relitigate the issue. However, the proceedings before their Honours were only interlocutory and I have considered it appropriate to determine the issue on the evidence put before me. 43The Court was also referred to the judgment of Fullerton J in Attorney General in for the State of New South Wales v Viavattene [2013] NSWSC 453. The same issue was touched upon during the course of her Honour's judgment at [37]-[43]. However, the question before her Honour was whether Mrs Viavattene were a vexatious litigant. 44The realignment of the access road took place on the day on which the photograph was taken, but the evidence does not reveal whether the photograph was taken before or after the realignment was complete. The Council could succeed only if it proved that the plaintiff erected the curtain after the realignment was complete. The Council ought to have an opportunity to adduce evidence about that. 45The third infringement notice was number 3021165914. The infringement was asserted to have been committed at 2:44pm on Thursday 18 November 2010. After 'Notes:' there was this- observed scrim across road restricting access to property 46The third infringement notice relies on the hanging of a plastic curtain from the power pole. A photograph taken at 2:44pm on 18 November 2010 shows the curtain attached to the power pole and stretched across the width of the access road. The curtain was likely to stop anyone trying to travel any further north on the access road. Since the access road had by then been realigned to avoid any encroachment on the plaintiff's land, there was no justification for placing the curtain across the access road. 47The fifth infringement notice was number 3021165932. The infringement was asserted to have been committed at 10:08am on the same day. After 'Notes:' there was this- observed log on access road causing obstruction 48The sixth infringement notice was number 3021165941. The infringement was asserted to have been committed at 10:09am on the same day. After 'Notes:' there was this- observed scrimmage placed across road access stopping access 49The fifth and sixth infringement notices rely on the placing of a tree trunk across the access road and the plastic curtain in the position previously noted. The tree trunk was photographed at 10:08am on 19 November 2010 and the curtain at 10:09am on the same day. The tree trunk was likely to restrict or endanger the use of the access road. The curtain was likely to restrict the use of the access road or interfere with public convenience. There was no justification for their having being placed on the access road. 50The eighth infringement notice was number 3021165960. The infringement was asserted to have been committed at 8:47am and 9:30am on the same day. There was no further particularisation of the offence. 51The infringement notice is supported by two photographs. One, taken at 8:47am on 20 November 2010, shows a notice board propped on the western side of the access road. The other, taken at the same time, shows a cable or vine across the access road. Either or both would restrict the use of the access road or interfere with public convenience. There is no justification for either of those things to have been placed on the access road. 52The ninth infringement notice was number 3021130411. The infringement was asserted to have been committed at 10:25am on 3 December 2010. After 'Notes:' there was this- attended location and removed ojects (sic) from road reserve wittn (sic) 53The infringement notice relies on photographs taken at 10:24am and 10:25am on 3 December 2010, showing garbage bins and wire placed on the access road. All were likely to restrict use of the access road or interfere with public convenience. There was no justification for those objects having being placed on the access road. 54The fourth infringement notice was number 3021165923. The infringement was asserted to have been committed at 10:07am on Friday 19 November 2010. After 'Notes:' there was this- attend this area observed gravel removed from road and placed 55The seventh infringement notice was number 3021165950. The infringement was asserted to have been committed at 8:46am on Saturday 20 November 2010. After 'Notes:' there was this- observed gravel removed from road large area with holes in I (sic) 56The fourth and seventh infringement notices rely on photographs showing that gravel, placed on the surface by the Council during the realignment of the access road, was removed. The complaint under the fourth notice was it had been removed and replaced in front of a shed or garage on the plaintiff's land. The complaint under the seventh infringement notice, I think, was that there were resulting holes in the remaining gravel surface. 57After reserving judgment in this matter I invited counsel and the plaintiff to submit how the removal of gravel fell within Reg 11(1)(b). Mr Johnson submitted that if the Council relied only on the removal of gravel there was no breach of the Regulation. He also accepted that the placing of gravel so removed on the ground in front of the plaintiff's garage was not likely to restrict or endanger the use of a road by the public or interfere with the public convenience. In a later submission it was conceded that it was appropriate to allow the appeal as it related to the fourth and seventh infringement notices. 58For the reasons I have explained, I am of the opinion that the plaintiff has made out his case for a defended hearing of the Council's case on the first and second infringement notices. He has shown his entitlement to an acquittal on the fourth and seventh notices. For those reasons I would grant him an extension of time within which to bring his application for leave to appeal and would grant leave to appeal. 59In so far as the plaintiff's appeal is against the sentences imposed, I note that under each infringement notice the Magistrate imposed the maximum penalty as set forth in the notice. The Magistrate had a discretion to deal with the matter more leniently but did not consider whether he should do so. In my opinion the plaintiff ought to have the opportunity to have the Magistrate who deals with the surviving infringement notices consider whether some penalty less than the maximum prescribed penalty should be imposed. 60Both the plaintiff and the Council have had substantial success in the appeal. It seems just, therefore, to allow costs to lie where they have fallen. I make no order as to costs. 61The orders I make are as follows- (1)Extend the time within which the plaintiff may apply for leave to appeal to the day on which his summons was filed. (2)Grant leave to appeal. (3)Set aside the convictions, fines and costs orders resulting from the first and second infringement notices and remit the matter to the Local Court sitting at Murwillumbah for redetermination in accordance with these directions. (4)Set aside the convictions resulting from the fourth and seventh infringement notices. (5)Dismiss the appeal against the convictions resulting from the third, fifth, sixth, eighth and ninth infringement notices. (6)Set aside the fines and costs orders resulting from the third, fifth, sixth, eighth and ninth infringement notices and remit the matter to the Local Court sitting at Murwillumbah for redetermination in accordance with these directions.
Amendments 28 June 2013 - Amended decision under appeal: before Amended paragraphs: Coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 June 2013
Viavattene
Tweed Shire Council & Anor