Viavattene v Davison

[2012] NSWSC 901

Supreme Court

New South Wales

Medium Neutral Citation:

Viavattene v Davison [2012] NSWSC 901

Hearing dates:

31/07/2012

Decision date:

09 August 2012

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

(1) Leave to appeal is refused.

(2) The appeal is dismissed.

(3) The decision of her Honour Magistrate Stafford dated 29 March 2012 is affirmed.

(4) The amended summons filed 14 May 2012 is dismissed.

(5) The plaintiff is to pay the defendants' costs as agreed or assessed.

Catchwords:

APPEAL FROM LOCAL COURT - plaintiff absent at hearing in Local Court - matter dealt with in plaintiff's absence - contravention of Apprehended Violence Order - appeal on a question of law - appeal dismissed

Legislation Cited:

Conveyancing Act 1919
Crimes (Appeal and Review) Act 2001
Crimes (Domestic and Personal Violence) Act 2007
Criminal Procedure Act 1986
Fines Act 1996
Supreme Court Act 1970

Cases Cited:

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
House v The King (1936) 55 CLR 499 Touma v Saparas [2000] NSWCA 11 Newton v Ellis [2012] NSWCA 106

Category:

Principal judgment

Parties:

Beverly Viavattene (Plaintiff)
Senior Constable Greg Davison (First Defendant)
Sergeant Paul Thierjung (Second Defendant)

Representation:

Plaintiff in person
B Baker - Solicitor (Defendants)
Plaintiff in person
Crown Solicitor's Office (Defendants)

File Number(s):

2012/117819

Judgment

1. HER HONOUR: By amended summons filed 14 May 2012, the plaintiff seeks, firstly, an order that the appeal be allowed; secondly, that the judgment of the court below be set aside; thirdly, an order quashing all convictions and costs orders entered by Magistrate Stafford at the Murwillumbah Local Court; fourthly, a declaration that "There is no Council Access road or easement through or over the plaintiff's property, (lot X in DP XXXXX ) at XXX XXXXX XXXX, Chillingham New South Wales, registered on title"; fifthly, an order that the defendant pay the plaintiff's costs; and finally, an order for aggravated compensatory damages to be paid in favour of the plaintiff.

1. The plaintiff is Beverly Viavattene. The first defendant is Senior Constable Greg Davison (Davison) and the second defendant is Sergeant Paul Thierjung (Thierjung). The plaintiff was the defendant in the Local Court proceedings. The defendants were the plaintiffs in the Local Court proceedings. For convenience I shall refer to the parties by name. The appeal is brought under s 52 of the Crimes (Appeal and Review) Act 2001 on the grounds that it involves a question of law alone.

1. This matter has been referred to me for hearing by the List Judge. Ms Viavattene was self represented. Ms Baker, solicitor, appeared for Davison and Thierjung.

Grounds of appeal

1. The plaintiff appeals from the whole of the decision of Magistrate Stafford dated 29 March 2012 on the grounds firstly, that there was an error of law in the decision of the court below because the plaintiff did not breach the Apprehended Violence Order (AVO) taken out by Police for Bruce Morton on 22 November 2011 because she was on her property and there is no "council access road" or easement through or over the plaintiff's property; and secondly, on a question of law, because the action by Police in relation to the "Breach of AVO" are contrary to law and violate the plaintiff's human rights because there is no "council access road" or easement through or over the plaintiff's property.

1. Sections 52 and 53 of the Crimes (Appeal and Review) Act relevantly read:

"52 Appeals as of right

(1) Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone...

53 Appeals requiring leave

(1) Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence on a ground that involves:

(a) a question of fact, or

(b) a question of mixed law and fact,

but only by leave of the Supreme Court..."

1. The Supreme Court may determine an appeal against conviction by setting aside the conviction, or by setting aside the conviction and remitting the matter to the Local Court or by dismissing the appeal - see s 55 of the Crimes (Appeal and Review) Act.

1. Mrs Viavattene also relies on s 23 of the Supreme Court Act 1970 to quash the decision of the Magistrate. That section reads:

"23 Jurisdiction generally

The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales."

1. There has been ongoing dispute between Mrs Viavattene (and her husband) and Mr Morton (and Ms Birch) about whether an easement or council access road exists through Mrs Viavattene's property which enables Mr Morton to access his property. On 15 June 2011, the Local Court at Murwillumbah made a final apprehended violence order against the plaintiff. The applicant for the order was NSW Police. The person in need of protection was Mr Bruce Morton. The AVO conditions include that Mrs Viavattene must not assault, molest, harass, threaten or otherwise interfere with the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship. In addition, she must not enter the premises at which the protected person(s) may from time to time reside or work, or other specified premises; must not approach or contact the protected person(s) by any means whatsoever except through the defendant's legal representative; and finally, she must not destroy or deliberately damage or interfere with the property of the protected person.

1. At the heart of Mrs Viavattene's complaint is that she firmly believes that because there is no easement registered upon the property owned by her husband and herself, one does not exist. A real property search of Mr and Mrs Viavattene's property (in evidence) reveals that there is no easement registered on the title. However, that is not necessarily decisive. This Court can make an order imposing an easement over the land if the easement is reasonably necessary for the effective use of other land that will have the benefit of the easement (see s 88K of the Conveyancing Act 1919). She says that because there is no easement over her land, she could not have breached the AVO, as alleged, by parking her vehicle so as to block access to Mr Morton's property. This is because she was parked on her land. The plaintiff has produced a photograph to this Court showing the road with a ute parked on it. The foreground show that the land falls away. The plaintiff says it that where the land falls away represents the delineation of the road and the commencement the plaintiff's property (Ex B).

1. I have read Mrs Viavattene's affidavits, her assertions and submissions very carefully. The plaintiff requested this Court to view a DVD showing the use and blockage of the easement or council access road involving the Mortons and the Viavattenes. The DVD was viewed in chambers and I have taken it into account. In this judgment I shall confine myself to determining the appeal from the decision made by Magistrate Stafford on 29 March 2012.

The proceedings in the Local Court

1. Mrs Viavattene was issued with a Court Attendance Notice (the notice) (Ex A) to attend Court on 18 January 2012 at 9.30am. At another mention on 29 February 2012 the plaintiff was represented by a solicitor, Mr Hughes. He confirmed that Mrs Viavattene was pleading: "Not Guilty". The matter was listed for hearing on 29 March 2012 at the Local Court, Murwillumbah.

1. The details of offence referred to in the notice were:

"Contravene prohibition or restriction of an apprehended violence order between 3.45 pm and 5.25 pm on 22/11/2011 at Chillingham did knowingly contravene a (prohibition/restriction) specified in an order."

1. The notice referred to the offence as a breach of s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007.

The Local Court hearing

1. On 29 March 2012, the prosecution came before Magistrate Stafford in the Local Court at Murwillumbah for hearing. Mr Hughes again appeared for Mrs Viavattene. A police prosecutor appeared for the informant.

1. Mr Hughes indicated that Mrs Viavattene was not present in Court. Mr Hughes advised the Magistrate that there was an application for an adjournment by Mrs Viavattene. The Magistrate read the letter on the Court file dated 20 March 2012 from Mrs Viavattene requesting that the matter be adjourned and stating that she was unable to attend because of "parental responsibilities". Mr Hughes was unable to provide any additional information.

1. The Magistrate delivered a brief judgment stating that when the matter was set down for hearing on 29 February 2012, Mrs Viavattene was represented by Mr Hughes. Her Honour then stated (T2-3):

"The basis of the adjournment application is that it be adjourned in the interests of justice, procedural fairness, as [the plaintiff] is unable to attend as she has parental responsibilities. There is no further information about what those responsibilities are. Many people come to court for their hearings who have parental responsibilities and there is simply nothing before me that would persuade me that this matter should be adjourned any longer and I must say if it was it would be running quite contrary to the practice notes in relation to the efficient disposal of matters before the court. So the application for an adjournment is denied."

1. Mr Hughes had previously indicated that he sought to be excused in the event that the adjournment was refused. In accordance with this request, her Honour excused Mr Hughes following the refusal of the adjournment application.

1. The matter was then dealt with by the Magistrate on an ex parte basis pursuant to ss 196 and 199 of the Criminal Procedure Act 1986. Mrs Viavattene had not sought to rely upon any evidence. The Police facts sheet was handed up, together with two photographs showing the position of Mrs Viavattene's car.

1. The facts sheet (Ex A on the appeal) stated that on Tuesday 22 November 2011 Bruce Morton and Eve Birch (the victims) were at their house at XXX XXXXX Road Chillingham. The victims have an enforceable AVO with the accused Beverly Viavattene who lives at XXX XXXXX Road Chillingham.

1. The victims sighted the accused's Queensland registered motor vehicle XXXXX X across the council access road, the only road to the victims' residence. The accused parked the rear end of her vehicle close to a telegraph pole and the front end of her vehicle close to a steel cable that runs down the telegraph pole. This action completely blocked any access to the victims' house.

1. Police arrived at 4.40pm and were unable to gain access into the victims' residence, because the accused's vehicle was blocking the council's access road. [Two photographs (referred to earlier in this judgment) were attached showing the car parked across a grass track].

1. Police recorded a series of photographs of the accused's vehicle that was blocking any vehicle access into the victims' house. Police locked their fully marked police vehicle and walked to the victims' house. At the victims' house police recorded two notebook statements identifying the accused as the person responsible for blocking their access to and from their property.

1. Police walked back to the accused's house and requested that the accused move her vehicle as it was blocking any access by the victims or any other person. At the time of this conversation the accused locked herself inside her premises and would not come out.

1. The accused was informed by police that she had breached an AVO against her by placing her vehicle in the road reserve blocking access to the victims' house. The accused yelled out to police to get off her property and that she had received a letter from Superintendent Wilkins stating that police do not investigate civil matters as it is her land.

1. The accused continued to yell that there is no easement or road recorded on her property title and continued to yell out that police should not get involved in civil matters. The accused further stated that Mr Morton had bashed her and that police had done nothing about it. The accused claimed that this was police harassment and again ordered that police get off her land.

1. The accused was again informed that she was in breach of her AVO by placing her vehicle across the road reserve and that she will be arrested for the matter and her vehicle towed away. Police had asked the accused to remove her vehicle as it was obstructing her neighbours free access and to come out of the house. The accused stated she would remove the car if police left the area.

1. The accused removed her vehicle. The victims had been unable to exit their property for one hour and forty minutes.

1. Police informed the accused that she would be charged with breaching the enforceable AVO.

1. Finally, the fact sheet stated that the enforceable AVO clearly states that the accused must not harass or otherwise interfere with the protected persons and that blocking the victims' only entry and exit road is harassing and interfering with the victims.

1. After considering this material, the Magistrate convicted the plaintiff and fined her $1100 with court costs of $81 (T3).

Was there an error that involves a question of law?

1. As Mrs Viavattene did not present any evidence and did not appear at court, the Magistrate was entitled to proceed to hear the matter in her absence. Her Honour did so.

1. A refusal of an adjournment may amount to a denial of procedural fairness if it is likely to deny a party a reasonable opportunity to present his or her case: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 611 (per Gaudron and Gummow JJ). The question of whether a party has been given a reasonable opportunity to present his or her case is a question of discretion, so that the principles in House v The King (1936) 55 CLR 499 apply: Touma v Saparas [2000] NSWCA 11 at [27]; Newtonv Ellis [2012] NSWCA 106 at [17].

1. Had the plaintiff provided the Court with good reason for her absence, there may have been a denial of procedural fairness for the Court not to grant the adjournment. However, Mrs Viavattene's explanation for her failure to appear at the hearing in the Local Court was because of her "parental responsibilities". She was clearly aware of the date of the hearing, and had been on notice of the date of the hearing since 29 February 2012. As the Magistrate stated "many people come to court for their hearings who have parental responsibilities". In the absence of any further information concerning those responsibilities, either from the plaintiff or her solicitor, the Magistrate was entitled to decide that the adjournment application should be refused. In these circumstances, the exercise of the Magistrate's discretion did not miscarry.

Relevance of the easement

1. As previously stated, Mrs Viavattene asserted at the hearing of this appeal that she cannot be guilty of a breach of the AVO because, as there was no easement or access road over her property, she parked her car on her property.

1. However, there was no evidence before the Local Court as to the existence or non-existence of any easements over the plaintiff's property. The only evidence before the Local Court was the Court Attendance Notice and the fact sheet.

1. The existence or non-existence of an easement was not relevant to the Local Court's determination of whether the plaintiff had breached the AVO. The AVO included an order that the plaintiff not harass the persons in need of protection. In the Facts Sheet, Police asserted that the plaintiff had harassed the victims by blocking access to their property. The Magistrate accepted this evidence. There was no need to prove any breach of property rights. An AVO may be breached by the plaintiff even when she is within her own property. For example, if the plaintiff had yelled abuse at the victims while standing on her property, the AVO would have been breached, notwithstanding that the plaintiff was within her own property at the time the threats were made.

1. The plaintiff also appears to assert that the AVO itself was improperly made, and that, in these circumstances, she cannot be convicted of breaching it. The Local Court was entitled to proceed to conviction on the basis of the documents before the Court pursuant to s 199 of the Criminal Procedure Act.

1. It is my view that the Magistrate was entitled to find the offence proved and to sentence Mrs Viavattene. There is no error of law.

Fines and suspension of licence

1. So far as Mrs Viavattene's human rights are concerned, she has made reference in her submissions to the fact that her licence has been suspended as a result of the fine and costs order imposed by the Magistrate. Where fines are unpaid, the State Debt Recovery Office ("SDRO") may take action, including requiring Roads and Maritime Services to suspend the defaulter's licence: Division 3 of Part 4 of the Fines Act 1996. However, correspondence tendered by the plaintiff indicates that the plaintiff first wrote to the SDRO appealing her fines in July 2011 (Annexure R to Aff 2 July 2012), which was prior to the imposition of the fine in the present case. In these circumstances, it is unclear whether any enforcement action taken by the SDRO relates to the present conviction.

Declaration

1. The plaintiff also seeks a declaration that there is "no council access road or easement through or over the plaintiff's property".

1. While the Crimes (Appeal and Review) Act does not confer jurisdiction on the Supreme Court to make such a declaration, jurisdiction is conferred on this Court by virtue of s 75 of the Supreme Court Act 1970.

1. The plaintiff has sought a declaration pursuant to s 75 in this Court. She commenced prior proceedings in this Court seeking a declaration concerning the easement. However, that statement of claim was struck out. In any event, it is my view that this Court cannot make a declaration concerning property rights in proceedings where interested persons (namely Mr Morton and Ms Birch) have not been joined as parties and have had no opportunity to be heard in relation to the relief sought.

Compensatory Damages

1. The final relief sought by the plaintiff is an order for "aggravated compensatory damages." There is no jurisdiction to award damages conferred by the Crimes (Appeal and Review) Act.

1. The grounds of appeal do not raise any question of law. Nor do they raise any questions of mixed fact or law for which leave ought to be granted. The result is that the appeal is dismissed. The decision of her Honour Magistrate Stafford dated 29 March 2012 is affirmed. The amended summons filed 14 May 2012 is dismissed.

1. Costs are discretionary. Costs usually follow the event. As the plaintiff was wholly unsuccessful she is to pay the defendants' costs as agreed or assessed.

The Court orders that:

(1) Leave to appeal is refused.

(2) The appeal is dismissed.

(3) The decision of her Honour Magistrate Stafford dated 29 March 2012 is affirmed.

(4) The amended summons filed 14 May 2012 is dismissed.

(5) The plaintiff is to pay the defendants' costs as agreed or assessed.

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Decision last updated: 09 August 2012