Gerard Cassegrain & Co Pty Ltd v Cassegrain - [2013] NSWSC 453

Supreme Court

New South Wales

Medium Neutral Citation: Attorney General in and for the State of New South Wales v Viavattene [2013] NSWSC 453
Hearing dates: 25/03/2013
Decision date: 03 May 2013
Before: Fullerton J
Decision:
1. Pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008, Beverly Georgina Viavattene is prohibited from instituting proceedings in New South Wales other than with leave of an appropriate court under that Act.
2. Any legal proceedings instituted by Beverly Georgina Viavattene in any court or tribunal in New South Wales before the date of this order are hereby stayed.

Catchwords: PROCEDURE - application for vexatious proceedings order pursuant to s 8(7)(b) of the Vexatious Proceedings Act - meaning of vexatious proceedings - whether vexatious proceedings were instituted or conducted frequently - meaning of "frequently"
Legislation Cited: Conveyancing Act 1919
Crimes (Appeal and Review) Act 2001
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005
Vexatious Proceedings Act 2008
Cases Cited: Attorney General v Altaranesi [2013] NSWSC 63
Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192
Attorney General of New South Wales v Croker [2010] NSWSC 942
Attorney General of NSW v Wilson [2010] NSWSC 1008
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Viavattene v Davison [2012] NSWSC 901
Category: Principal judgment
Parties: Attorney General (Plaintiff)
Beverly Georgina Viavattene (Defendant)
Representation: Counsel:
J Emmett (Plaintiff)
In person
Solicitors:
Crown Solicitor of New South Wales (Plaintiff)
In person

File Number(s): 2012/169892

Judgment

HER HONOUR: By summons dated 29 May 2012 the Attorney General of New South Wales makes an application for a vexatious proceedings order ("the order") under s 8(7)(b) of the Vexatious Proceedings Act 2008 ("the Act") the effect of which would be to prohibit the defendant, Beverly Viavattene, from instituting proceedings in New South Wales other than with a grant of leave, and staying any proceedings instituted by her before the date of the order.

The Attorney General has standing under s 8(4)(a) of the Act to bring the application despite being a stranger to each of the proceedings relied upon as grounding the issue of the order.

The defendant, who appeared on her own behalf in the proceedings before me, submitted that the summons should be dismissed. She submitted that she was not a vexatious litigant (by which I understood her to mean she was not a person against whom a vexatious proceedings order should issue) as none of the proceedings relied upon by the Attorney General to which she was a party, or which she conducted on her husband's behalf with leave, qualify as vexatious proceedings as defined in s 6 of the Act. In essence, she submitted that despite the ultimate disposition of the multiplicity of proceedings she has either instituted or conducted (in each case unfavorably to her) she has a continuing entitlement to pursue a catalogue of legal rights to redress from breach of her rights as a landowner. She also claimed that she has a…

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

Case: [2013] NSWSC 453
Decision Date: 03 May 2013

CaseChat Overview and Summary

In the case of Gerard Cassegrain & Co Pty Ltd v Cassegrain, the primary focus was on an application for an order under section 8(7)(b) of the Vexatious Proceedings Act, which pertains to vexatious proceedings. The dispute involved the interpretation of the term "frequently" in the context of determining whether proceedings were vexatious. The Court of Appeal was tasked with examining the nature of the proceedings and the conduct of the parties in the context of the relevant statutory provision.

The legal issue before the court was to determine the meaning of "frequently" as it applies to the criteria for a vexatious proceedings order. Specifically, the court had to consider whether the proceedings were instituted or conducted frequently, as this was a key factor in deciding whether the proceedings were vexatious. The court was required to balance the right to access the courts with the need to prevent abuse of the legal process by proceedings that are vexatious in nature.

The court held that the term "frequently" in the context of the Vexatious Proceedings Act should be interpreted to mean more than just occasional or sporadic instances of litigation. The court emphasised that for proceedings to be considered vexatious, they must be recurrent and persistent in nature. The court also noted that the term should be interpreted in light of the overall context and the conduct of the parties. Ultimately, the court concluded that the proceedings in this case did not meet the threshold for being considered vexatious under the statutory criteria. The application for a vexatious proceedings order was therefore dismissed.

No further orders were made by the court beyond dismissing the application for a vexatious proceedings order. The decision provides clarity on the interpretation of the term "frequently" in the context of the Vexatious Proceedings Act and reinforces the importance of balancing the right to access the courts with the need to prevent abuse of the legal process.

Orders