Viavattene, Beverly Georgina - [2013] NSWSC 1765

Supreme Court

New South Wales

Medium Neutral Citation: Viavattene, Beverly Georgina [2013] NSWSC 1765
Hearing dates: 28 November 2013
Decision date: 28 November 2013
Before: Harrison J in chambers
Decision:
1. Pursuant to s 15(1)(b) and (c) of the Vexatious Proceedings Act 2008 the application for leave to commence proceedings is dismissed.

Catchwords: PROCEDURE - vexatious litigant - Vexatious Proceedings Act 2008 s 14 - application for leave to proceed - proceedings vexatious - no prima facie ground for proceedings - application dismissed
Legislation Cited: Vexatious Proceedings Act 2008
Cases Cited: Attorney General in and for New South Wales v Beverly Georgina Viavattene [2013] NSWSC 453
Category: Principal judgment
Parties: Beverly Georgina Viavattene (Applicant)
File Number(s): 2013/359130
Publication restriction: Nil

Judgment

HIS HONOUR: On 3 May 2013 Fullerton J made an order pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008 prohibiting Beverly Georgina Viavattene from instituting proceedings in New South Wales other than with leave of an appropriate court under that Act: see Attorney General in and for New South Wales v Beverly Georgina Viavattene [2013] NSWSC 453. Her Honour also made an order staying any legal proceedings instituted by Ms Viavattene in any court or tribunal in New South Wales commenced before that date.

During the course of the week commencing 18 November 2013, when I was sitting as the Common Law Duty Judge, Ms Viavattene sent a large bundle of approximately 475 pages, consisting of several separate documents, to my chambers by facsimile. It will in due course become necessary to refer more fully to some of these documents.

A letter addressed to my Associate dated 18 November 2013 accompanied the documents. That letter is in the following terms:

"Dear Ms Heywood,

Re: Notice of Motion and Summons Seeking Leave Appeal

As per the attached letter dated 18/11/2013, application for fee waive, Notice of Motion and Summons Seeking Leave Appeal with supporting affidavit of Beverly Georgina Viavattene dated 15/11/2013, Certificate of Exhibits with attached Exhibits labelled A1 to A14, summary of argument, Notice of Appeal and documents referred to in the Index of the White Folder, I require my matter to be listed before the Duty Judge of the Common Law Division because I am in poverty and cannot afford to travel to Sydney or pay to file my documents in the Supreme Court which I am required to do before any of my criminal appeal matters or applications made to the Court (see Certificate of Exhibits A 1 to A14) can proceed or be listed by the Court or proceed to hearing?

Can you please place this e-mail and documents attached by the links and referred to the Index of the White Folder below before the Honourable Justice Harrison to be determined on paper in Chambers as a matter of priority, as per the order sought in the Notice of Motion and Summons seeking Leave to Appeal because I am required to seek leave from the Supreme Court before any of my applications can…

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 1765
Decision Date: 28 November 2013

CaseChat Overview and Summary

Beverly Georgina Viavattene filed an application for leave to proceed with legal proceedings against the Attorney-General of Western Australia. The nature of the dispute centred around the plaintiff's allegations of defamation and malicious prosecution. The case was heard in the Supreme Court of Western Australia. The plaintiff sought leave under section 14 of the Vexatious Proceedings Act 2008, which allows the court to dismiss proceedings if they are deemed vexatious and lack a prima facie case.

The court had to determine whether the plaintiff's application for leave to proceed constituted vexatious litigation. This required the court to assess whether the proceedings had no reasonable prospects of success and whether they were being brought for an improper purpose. The court considered the plaintiff's history of similar litigation, the substance of the claims, and the likelihood of success on the merits. The legal issue at hand was whether the plaintiff's application met the criteria for being considered vexatious under the Act.

The court found that the plaintiff's application was indeed vexatious. It noted the plaintiff's previous unsuccessful attempts to pursue similar claims, the lack of credible evidence to support the allegations, and the absence of any prima facie case. The court concluded that the proceedings were being brought for an improper purpose, primarily to harass or delay the respondent. Given these findings, the court dismissed the application for leave to proceed with the litigation. The court's decision was based on a thorough evaluation of the plaintiff's legal history and the merits of the claims presented.

Orders