Attorney General in and for the State of New South Wales v Beverly Viavattene - [2012] NSWSC 902

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 2008
Cases 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 267
Category: 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Attorney General in and for the State of New South Wales v Beverly Viavattene [2012] NSWSC 902
Case: [2012] NSWSC 902
Decision Date: 09 August 2012

CaseChat Overview and Summary

In the matter of Attorney General in and for the State of New South Wales v Beverly Viavattene, the court was presented with an application by the Attorney General to have the plaintiff, Beverly Viavattene, declared a vexatious litigant. This application was brought pursuant to the provisions of the Uniform Civil Procedure Rules 2005, specifically rules 13.4 and 14.28. The court was tasked with determining whether the application to strike out the plaintiff's pleadings should be dismissed, which would permit the substantive proceedings to continue.

The primary legal issues before the court were whether the plaintiff's conduct in filing numerous proceedings against various defendants constituted vexatious litigation as defined by the legislation, and whether the application to strike out the pleadings was appropriate under the rules of court. The court needed to assess the balance between protecting the court's resources and ensuring that the plaintiff's right to access justice was not unduly restricted. The court examined the plaintiff's history of litigation, the nature of the claims, and the impact of her litigation on the defendants and the judicial system.

The court concluded that the application to strike out the pleadings should be dismissed. It found that the plaintiff's conduct did not meet the threshold of vexatious litigation, as there were genuine issues to be determined in the substantive proceedings. The court emphasised the importance of allowing the substantive matters to proceed to a determination on their merits, rather than dismissing them on procedural grounds. Consequently, the application to strike out was not successful, and the substantive proceedings were permitted to continue.

Orders