Viavattene v Attorney General of New South Wales

In *Viavattene v Attorney General of New South Wales*, the applicant sought leave to appeal from orders made by Bellew J on 26 March 2014, which were made under the *Vexatious Proceedings Act*. The applicant contended that these orders, made in his absence, were procedurally unfair and arguably too broad, particularly as they appeared to prevent him from appealing against his present incarceration. The appeal was heard by Basten JA and Tobias AJA.

The primary legal issues before the court were whether the applicant had an arguable case of error or procedural unfairness in the orders made under the *Vexatious Proceedings Act*, and whether these orders prevented him from appealing against a criminal conviction and sentence. The court also considered whether leave was required to seek leave to appeal and whether the orders should be varied to allow the applicant to challenge his present incarceration.

The court reasoned that the applicant had an arguable case of procedural unfairness and that the orders made by Bellew J were arguably too broad, particularly in their effect on the applicant's ability to challenge his imprisonment. The court applied principles relating to the grant of leave to appeal where an arguable case of error or unfairness is demonstrated, and the need to ensure that orders under the *Vexatious Proceedings Act* are justified and do not unduly fetter a person's right to seek redress.

The court made several orders, including waiving the requirement for an affidavit under s 14(3) of the *Vexatious Proceedings Act*, extending time to seek leave to appeal, and granting the applicant leave to commence proceedings seeking leave and an appeal from the judgment and orders of 26 March 2014. Crucially, the court varied the orders made by Bellew J, pursuant to s 9 of the *Vexatious Proceedings Act*, so as not to apply to any appeal or application for leave to appeal from any conviction, sentence, or order leading to imprisonment, or to any application for bail, pending the determination of the appeal. Costs were made costs in the appeal.