Attorney General in and for the State of New South Wales v Beverly Viavattene
[2012] NSWSC 902
•09 August 2012
Supreme Court
New South Wales
Medium Neutral Citation: Attorney General in and for the State of New South Wales v Beverly Viavattene [2012] NSWSC 902 Hearing dates: 31/07/2012 Decision date: 09 August 2012 Jurisdiction: Common Law Before: Harrison AsJ Decision: (1) The defendant's notice of motion filed 4 July 2012 is dismissed.
(2) The defendant is to pay the plaintiff's costs as agreed or assessed.
Catchwords: PRACTICE AND PROCEDURE - application to strike-out pleadings - Uniform Civil Procedure Rules 2005 rr 13.4 and 14.28 - substantive proceedings by Attorney General to have plaintiff declared a vexatious litigant - strike-out application dismissed Legislation Cited: Conveyancing Act 1919
Judiciary Act 1903 (Cth)
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005
Vexatious Proceedings Act 2008Cases Cited: General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125
Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937
Walsh v Little [2009] NSWSC 267Category: Procedural and other rulings Parties: Attorney General in and for the State of New South Wales (Plaintiff)
Beverly Viavattene (Defendant)Representation: H Stenning (solicitor) (Plaintiff)
Defendant in person
Crown Solicitor's Office (Plaintiff)
Defendant in person
File Number(s): 2012/160892
Judgment
By summons filed 29 May 2012, the Attorney General in and for the State of New South Wales seeks, firstly, an order that pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008, the defendant is prohibited from instituting proceedings in New South Wales without leave of the Court; and secondly, an order that pursuant to s 8(7)(a) of the Vexatious Proceedings Act, all proceedings in New South Wales already instituted by the defendant be stayed.
By notice of motion filed 4 July 2012, the defendant seeks an order that the proceedings as against her be struck out. It is this notice of motion that I will consider in these reasons.
Ms Stenning appeared for the Attorney General. The defendant was self represented.
Court's power to dismiss proceedings
The plaintiff relies on s 8(4)(d) of the Vexatious Proceedings Act to have the Attorney General's summons struck out.
Section 8(4)(d) of the Vexatious Proceedings Act reads:
"8 Making of vexatious proceedings order
(4) Orders may be made on court's own motion or on application
An authorised court may make a vexatious proceedings order of its own motion or on the application of any of the following persons:
...
(d) a person against or in relation to whom another person has instituted or conducted vexatious proceedings."
This section does not assist the plaintiff.
The Court may strike out pleadings pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005 (UCPR). It reads:
"14.28 Circumstances in which court may strike out pleadings
(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
(c) is otherwise an abuse of the process of the court.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1)."
The word "pleading" is defined in the Dictionary to the UCPR, which states:
"pleading includes a statement of claim, defence, reply and any subsequent pleading for which leave is given under Part 14, but does not include a summons or notice of motion."
These proceedings were commenced by summons. A summons does not fall within the definition of "pleading". Hence, UCPR 14.28 does not apply.
However, the Court has the power under UCPR 13.4 to dismiss proceedings:
"13.4 Frivolous and vexatious proceedings
(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
(a) the proceedings are frivolous or vexatious, or
(b) no reasonable cause of action is disclosed, or
(c) the proceedings are an abuse of the process of the court,
the court may order that the proceedings be dismissed generally or in relation to that claim.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1)."
In addition, the Court has an inherent power to stay or dismiss proceedings that are an abuse of its process: Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 944 (Cross J) (in relation to the equivalent power in the Supreme Court Rules 1970; accepted by Hall J to apply in relation to the UCPR in Walsh v Little [2009] NSWSC 267 at [8] - [10]).
The test to dismiss proceedings on a summary basis (that is, without going to trial for a hearing on its merits) is a high one. The test is perhaps best expressed in General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125, where Barwick CJ stated at 129:
"[T]he plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action...is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".
...
As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same."
The Attorney General relied upon the affidavit of Holly Stenning affirmed 29 May 2012. The basis of the Attorney General seeking an order that the defendant be declared vexatious is the way she has litigated proceedings in various courts. She has a number of proceedings in the Local Court at Murwillumbah, one in this Court and one in the Consumer, Trader and Tenancy Tribunal. The plaintiff intends to rely on various court files and transcripts of those proceedings at the hearing.
To support the orders sought in her notice of motion the defendant trammels wide-ranging evidence, assertions and submissions. I have read them all and carefully considered their contents. The defendant also requested this Court watch two DVDs, Ex BGV1 and Ex V4 (not exhibited at this hearing), but regrettably Ex BGV1 did not play. I read the synopsis of the DVD footage and I have also taken it into account. The plaintiff submitted that there is nothing in the evidence filed by the defendant on this motion that satisfies any of the tests set out above in General Steel.
The background to the various proceedings being litigated by Mrs Viavattene is as follows: There has been ongoing dispute between Mrs Viavattene (and her husband) and Mr Morton (and Ms Birch) about whether an easement or council access road exists through Mrs Viavattene's property which enables Mr Morton to access his property. At the heart of Mrs Viavattene's complaint is that she firmly believes that because there is no easement registered upon the property owned by her husband and herself, one does not exist. A real property search of Mr and Mrs Viavattene's property (in evidence) reveals that there is no easement registered on the title. However, that is not necessarily decisive. This Court can make an order imposing an easement over the land if the easement is reasonably necessary for the effective use of other land that will have the benefit of the easement (see s 88K of the Conveyancing Act 1919). Mrs Viavattene also asserts that the Police do not take her complaints seriously and do not act upon them. A number of the Local Court proceedings at Murwillumbah arise out of this dispute.
Also at this hearing, Mrs Viavattene relied upon a Notice of Constitutional Matter in these proceedings (filed in the Registry). This document also covers wide-ranging issues. It reads:
"NOTICE OF CONSTITUTIONAL MATTER
1. The defendent (sic) gives notice that this proceeding involves a matter arising out of the Constitution or involving its interpretation within the meaning of Section 78B of the Judiciary Act 1903.
2. There was an error of law in the decisions made by Magistrate Dakin and Magistrate Linden in the Local Court at Murwillumbah NSW against Peter and Beverly Viavattene because there is no "council access road" or easement through or over our property (lot XXXX - see Exhibit V 1) registered on Title.
3. According to the Law Reform Commission Report (1994) - Right to access to Neighbouring Land, in the absence of the permission of the owner, the civil and legal law in NSW both prohibit a general right of entry by a person onto a neighbouring property, regardless of the purpose of entry.
4. There is a question of law in relation to the Survey used by the respondent in their evidence in the allegations against the Beverly and Peter Viavattene because it does not comply with the legislation and has not been registered on Title.
5. According to section 36 of the Crimes Act 1914: Fabricating evidence, it is an offence to fabricate evidence or make use of fabricated evidence.
6. The respondent has used the Survey of Mitchel Liddell made 6/10/2010 as a false official instrument to pervert the course of justice in breach of section 15GE(j) of the Crimes Act 1914 and have conspired with the Tweed Shire Council to bring false allegations against Peter and Beverly Viavattene because there is no evidence of any right of access or easement through or over our Torrens Title property registered on Title (see Exhibit V1) in breach of section 41 of the Crimes Act 1914).
7. Under section 87 of the Crimes Act 1914: Any person, being authorised or required by law of the Commonwealth to give any certificate touching any matter by virtue whereof the rights of any person may be harmfully affected, gives a certificate which is, to his or her knowledge, false in any material particular, shall be guilty of an offence.
8. According to Section 85ZQ of the Crimes Act 1914, this part binds the Crown in the Commonwealth of each of the States.
9. The respondent has also breached sections 7, 19, 49T and 52 of the Anti-discrimination Act 1977 in relation to exercising their Police Powers and have not provided Police Protection for the Viavattene family or property and the respondent refuses to investigate our complaints or provide reference numbers for our complaints and refuse to prosecute Bruce Morton and others for assault and battery, trespass and breaching the terms of interim APVO's (sic) against them taken out for the protection of the Viavattene family.
10. The respondent's refusal to charge Bruce Morton and his Associates for crimes committed under the Crimes Act (see Exhibit V 4 and Synopsis Exhibit V 5) and violating the terms of the APVO's made against them is an offence under the Constitution.
11. Under section 42 of the Crimes Act 1914, Conspiracy to defeat justice: A person commits an offence if a person conspires with another person to obstruct, to prevent, to pervert, or to defeat the course of justice in relation to judicial power; and the judicial power is the judicial power of the Commonwealth.
12. The Murwillumbah Police are enforcing illegal orders made by Magistrate Dakin against me on my land, which were removed by Justice Budden (sic) on the 13/4/2011 and Justice P Garling on the 10/5/2011 in the Supreme Court of NSW.
13. Under section 43 of the Crimes Act 1914, it is an offence to obstruct, to prevent, to pervert or to defeat the course of justice in relation to a judicial power; and the judicial power is the judicial power of the Commonwealth.
14. I have been denied natural justice and procedural fairness because Magistrate Dakin and Magistrate Linden and the Registrar at the Local Court at Murwillumbah in NSW are bias against Peter and Beverly Viavattene and we are aggrieved because our legal and human rights have been revoked under Sections 8, 10, 11, 12, 18, 21, 22, 23, 24 and 25 of the Human Rights Act 2004 and sections 19A of the Australian Human Rights Commission Act 1986.
15. Since complaining about the criminal conduct of the respondent to the Commission in March 2012, the Registrar at the Murwillumbah Local Court has refused to stay all matters and cost orders relating to Peter and Beverly Viavattene in the Local and District Court and therefore convictions have been recorded in error by the Murwillumbah Court and my legal and human right revoked because my driver's licence has been suspended - when I am innocent and all matters are in appeal under section 5B of the Criminal Appeal Act 1912; in breach of sections 19A and 26(2) of the Australian Human Rights Commission Act 1986.
16. The criminal conduct of the Murwillumbah Police has caused the Viavattene family unjustifiable hardship, emotional suffering, defamation, indignity and humiliation, economic loss and damages. We are the true victims of crime, as seen in the video footage of attacks and assaults against the Viavattene family (exhibit V4 and synopsis exhibit V5 filed in these proceedings) that the police have."
The notice concludes by seeking various types of relief. It is unnecessary to reproduce them here. In oral submissions the plaintiff also elaborated on some of the matters raised in this notice.
Section 78B of the Judiciary Act 1903 (Cth) relevantly reads:
"78B Notice to Attorneys-General
(1) Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.
(2) For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending:
(a) may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit;
(b) may direct a party to give notice in accordance with that subsection; and
(c) may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation..."
So far as s 78B of the Judiciary Act is concerned, the solicitor for the plaintiff referred to Australian Competition and Consumer Commission (ACCC) v C G Berbatis Holdings Pty Ltd [1999] FCA 1151, where French J (as he then was) stated at [14]:
"Section 78B does not impose on the Court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be. If the asserted constitutional point is frivolous or vexatious or raised as an abuse of process, it will not attach to the matter in which it is raised the character of a matter arising under the Constitution or involving its interpretation - Nikolic v MGIC Ltd [1999] FCA 849: cf Australian Securities and Investments Commission v White (unreported, Federal Court, Drummond J, No QG 40 of 1998, 16 July 1998)."
After reading this document in its entirety and listening to the plaintiff read it to the Court, I find that it is difficult to discern with any clarity the constitutional issue or issues that she seeks to raise. Hence, as was pointed out in ACCC v C G Berbatis Holdings Pty Ltd, this Court can proceed to consider the merits of the notice of motion even though a Notice of Constitutional Matter had been filed. I will do so.
The defendant has not satisfied this Court that the plaintiff's case is so obviously untenable that it cannot possibly succeed. In my view the plaintiff has a real case to advance. The matters raised by the plaintiff should be permitted to go to trial. At trial, the strengths and weaknesses of both the plaintiff and defendant's case can be evaluated by the trial judge.
The result is that the defendant's notice of motion filed 4 July 2012 is dismissed.
Costs are discretionary. Costs usually follow the events. The defendant is to pay the plaintiff's costs as agreed or assessed.
The Court orders that:
(1) The defendant's notice of motion filed 4 July 2012 is dismissed.
(2) The defendant is to pay the plaintiff's costs as agreed or assessed.
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Decision last updated: 09 August 2012
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