Burnell v Weber

[2019] VCC 1628

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

APPEALS AND POST-SENTENCE APPLICATIONS LIST

Case No. AP-15-2023

LOUISE BURNELL	Appellant
v
STEPHEN WEBER	Respondent

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	11 October 2019
DATE OF JUDGMENT:	14 October 2019
CASE MAY BE CITED AS:	Burnell v Weber
MEDIUM NEUTRAL CITATION:	[2019] VCC 1628

REASONS FOR JUDGMENT
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Subject:  APPEAL

Catchwords:             Appeal pursuant to Personal Safety Intervention Orders Act 2010 – application to set aside order dismissing appeal

Legislation Cited:     Personal Safety Intervention Orders Act 2010
Judgment:                Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R Murray	R M Lawyers
For the Respondent	The respondent appeared in person

HIS HONOUR:

1       There is a significant history of disputes between Ms Burnell and her brother, Mr Weber, going back many years.  Relevantly, they relate to their mother, Mrs Gwendolyn Iris Weber.

2       In 2015, Orders were made by the Magistrates’ Court at Moorabbin under the provisions of the Personal Safety Intervention Orders Act 2010. The Orders named the affected family member as Mrs Gwendolyn Weber. The Orders were made on the application of Mr Weber. They contained restrictions in relation to Ms Burnell’s access to and relationship with Mrs Weber. Those Orders were apparently amended on 19 June and 3 July 2015, and those Amending Orders related, in particular, to the sale and disposal of a property at Unit 4, 70 Victoria Street, Sandringham.

3       By Notice of Appeal filed 24 August 2015, Ms Burnell appealed Orders made 6 July 2015.  Precisely what orders were to be appealed is unclear.  The grounds of appeal were said to be:

“1.      Breach of the duties (sic) of natural justice.

2.      The appellant is hearing impaired.

3.      The no evidence ground.”

4       The appeal came on for directions before her Honour Judge Hannan in this Court on 15 September 2015.  So far as the Court records would indicate, Ms Burnell appeared on that day.  Orders were made that the appeal be heard on 2 November 2015, with an estimated duration of one day.

5       The appeal came before her Honour Judge Pullen on 2 November 2015.  Ms Burnell did not appear.  The appeal was struck out.

6       I was informed by Mr Weber, at the hearing of this application on 11 October 2019, that his mother died in 2015.  The property, the subject of the Order, at Sandringham, was sold by auction.  The contents of the premises were put in storage prior to sale, including personal property of Ms Burnell, and she was provided access to those personal items.

7       By application made 21 August 2019, Ms Burnell sought to have the Orders of 2 November 2015 set aside.  Ms Burnell has “flooded” this Court with an array of documents, making a myriad of complaints of many matters, the great bulk of which have no relevance to this application.

8       She appeared on 11 October 2019 and was represented by Mr Murray.  She was granted leave to file an affidavit sworn 11 October 2019, which attached various exhibits.  The document is long and rambling and, again, bears little relevance to the issues at hand.  Given the passing of Mrs Weber, and the sale and disposal of the house, the original Orders have now no work to do.

9       The affidavit complains of a whole raft of issues, including:

·That the original Protection Orders were improperly obtained.

·That, in fact, Ms Burnell had a very good relationship with her mother.

·That she kept the property in good repair and paid various expenses.

·The application originally brought by her brother was “deceptive”.  He victimised, harassed and threatened Ms Burnell.

·The decision at the Magistrates’ Court was wrong.

·She was thrown out of the property by Victoria Police in August 2015.

·Ms Burnell suffered Depression at the relevant time.

10      The affidavit did not address the issue as to why Ms Burnell did not attend this Court on 2 November 2015.

11      On 11 October 2019, I asked both Mr Murray and Ms Burnell[1] to explain the basis upon which the Orders of November 2015 ought be set aside.  Neither was able to satisfactorily do so.

[1]Although represented, Ms Burnell sought to make submissions herself, which I allowed

12      There is no acceptable basis upon which the earlier Orders should be set aside.  In any event, given the passing of Mrs Weber, and the sale and disposal of the property and its contents, even if the appeal were re-instated, there would be no basis upon which it could succeed.

13      The Application is dismissed as an abuse of process.  I shall make appropriate Orders.

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