Viavattene v Attorney General (NSW)

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Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Viavattene v Attorney General (NSW) [2015] NSWCA 44
Hearing dates:6 February 2015
Decision date: 13 March 2015
Before: Beazley P at [1];
Basten JA at [6];
Leeming JA at [27]
Decision:

(1)Appeal allowed.

(2)Set aside the orders made on 26 March 2014, and in lieu thereof, order that pursuant to s 8(7)(c) of the Vexatious Proceedings Act 2008 (NSW) Mr Viavattene is prohibited from instituting proceedings in New South Wales which are inconsistent with the finding that, following its realignment in about 11 November 2010, the access track to adjoining land no longer encroaches upon the property known as 1520 Numinbah Road, Chillingham.
Catchwords: PRACTICE AND PROCEDURE – orders under Vexatious Proceedings Act 2008 (NSW) – primary judge made “blanket” order against applicant – errors in assessment whether vexatious proceedings had been frequently instituted conceded by Attorney – narrower order made – consideration of definition of “vexatious proceedings”
Legislation Cited: Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5
Civil Procedure Act 2005 (NSW), Pt 6 Div 1
Felons (Civil Proceedings) Act 1981 (NSW)
Supreme Court Act 1970 (NSW), ss 75A, 101
Uniform Civil Procedure Rules 2005 (NSW), r 10.16
Vexatious Proceedings Act 2008 (NSW), ss 5, 6, 7, 8, 14, 15 and 16
Cases Cited: Attorney-General v Michael [2005] WASC 203
Attorney-General v Tareq Altaranesi [2013] NSWSC 63
Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7
Dowling v Colonial Mutual Life Assurance Society Ltd [1915] HCA 56; 20 CLR 509
Hayes v Willoughby [2013] UKSC 17; [2013] 2 All ER 405
Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196
Martin v Attorney General for the State of New South Wales [2014] NSWCA 189
Pascoe v Liprini [2011] NSWSC 1484
Potier v Attorney General in and for the State of New South Wales [2014] NSWCA 256
Potier v State of New South Wales [2014] NSWCA 359
Viavattene HealthCare Australia [2013] FWCFB 2532
Viavattene v Attorney General of New South Wales [2014] NSWCA 218
Viavattene v HealthCare Australia [2013] FWC 756
Viavattene v Tweed Shire Council [2013] NSWCA 331
Viavattene v Tweed Shire Council [2013] NSWSC 838
Williams v Spautz [1992] HCA 34; 174 CLR 509
Category:Principal judgment
Parties: Peter Viavattene (Appellant)
Attorney General (NSW) (Respondent)
Representation:

Counsel:
Appellant in person
J Emmett (Respondent)

Solicitors:
Crown Solicitor’s Office (Respondent)
File Number(s):2014/138721
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Citation:
[2014] NSWSC 327
Date of Decision:
26 March 2014
Before:
Bellew J
File Number(s):
2012/323996

JUDGMENT

  1. BEAZLEY P:  I have had the advantage of reading in draft the reasons of Leeming JA. I agree with his Honour’s reasons and the orders he proposes. I have also had the opportunity of reading the additional remarks of Basten JA.

  2. Vexatious proceedings are defined in the Vexatious Proceedings Act 2008 (NSW) to include, relevantly, “proceedings conducted in a way…

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Details
Case
[2015] NSWCA 44
Decision Date

CaseChat Overview and Summary

The applicant, Mr Viavattene, appealed to the Court of Appeal of New South Wales against an order made by a primary judge under the *Vexatious Proceedings Act 2008* (NSW). The Attorney-General conceded that the primary judge had erred in assessing whether Mr Viavattene had frequently instituted vexatious proceedings, leading to a "blanket" order being made against him.

The central legal issue before the Court of Appeal was to determine the appropriate scope of an order under the *Vexatious Proceedings Act 2008* (NSW), considering the definition of "vexatious proceedings" and the specific circumstances of Mr Viavattene's litigation history. The court was required to assess whether the proceedings instituted by Mr Viavattene were indeed vexatious and, if so, what form of prohibition was warranted.

The Court of Appeal allowed the appeal, setting aside the original orders. The court reasoned that while some of Mr Viavattene's proceedings might have been vexatious, the initial broad order was not justified. Applying the principles of the *Vexatious Proceedings Act 2008* (NSW), the court determined that a narrower order was appropriate. Consequently, the court made an order prohibiting Mr Viavattene from instituting proceedings in New South Wales that were inconsistent with the finding that an access track did not encroach upon his property following its realignment on or about 11 November 2010.

Orders

Orders of the court

(1)Appeal allowed.

(2)Set aside the orders made on 26 March 2014, and in lieu thereof, order that pursuant to s 8(7)(c) of the Vexatious Proceedings Act 2008 (NSW) Mr Viavattene is prohibited from instituting proceedings in New South Wales which are inconsistent with the finding that, following its realignment in about 11 November 2010, the access track to adjoining land no longer encroaches upon the property known as 1520 Numinbah Road, Chillingham.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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