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

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.

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.

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

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…

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.

Continue reading Viavattene v Davison

Details

AGLC: Viavattene v Davison [2012] NSWSC 901
Case: [2012] NSWSC 901
Decision Date: 09 August 2012

CaseChat Overview and Summary

The case of Viavattene v Davison arose from an appeal against a decision made by the Local Court of New South Wales. The plaintiff, Viavattene, was absent at the hearing in the Local Court and the matter was dealt with in their absence. The dispute involved an apprehended violence order (AVO) which the plaintiff had contravened. The defendant, Davison, appealed the Local Court's decision on a question of law. The primary issue before the court was whether the Local Court had erred in dealing with the matter in the absence of the plaintiff, particularly given the serious nature of the allegations of AVO contravention.

The court considered the legal principles surrounding the handling of proceedings in the absence of a party, especially when the allegations involve serious matters such as a breach of an AVO. The court noted that while the absence of a party can sometimes warrant a dismissal of proceedings, it is also crucial to consider the specific circumstances of each case. The court examined whether the absence was justified and whether it was reasonable for the Local Court to proceed with the matter. It was determined that the Local Court had followed the appropriate legal procedures and considered the seriousness of the allegations, ultimately concluding that it was just and reasonable to proceed in the plaintiff's absence.

In reaching its decision, the court held that the Local Court did not commit any error in proceeding with the matter in the plaintiff's absence. The court found that the Local Court had adequately considered the implications of the absence and the gravity of the allegations. As a result, the appeal was dismissed, upholding the decision of the Local Court. The court emphasized the importance of ensuring that proceedings are handled fairly and justly, even in the absence of a party, particularly in matters involving significant legal consequences such as a contravention of an AVO.

Orders