Viavattene v Morton - [2015] NSWSC 1893

Supreme Court

New South Wales

Medium Neutral Citation: Viavattene v Morton and Ors [2015] NSWSC 1893
Hearing dates: 4 December 2015
Date of orders: 11 December 2015
Decision date: 11 December 2015
Jurisdiction: Common Law
Before: Campbell J
Decision:
The appeal is dismissed as incompetent

Catchwords:
VEXATIOUS PROCEEDINGS – plaintiff required to show cause why his appeal should not be dismissed as incompetent – plaintiff seeking default judgment as no appearance or defence filed by defendants – no default judgment on appeals – failure of defendants to appear or file a defence does not make appeal competent

APPEAL – source – grounded in statute – apprehended violence order appeal – right of appeal under s 84 Crimes (Domestic and Personal Violence) Act 2007 – procedure for appeal under Crimes (Appeal and Review) Act 2001
PROCEDURE – filing of documents
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW);
Crimes (Domestic and Personal Violence) Act 2007 (NSW);
Local Court Act 2007 (NSW);
Supreme Court Act 1970 (NSW);
Uniform Civil Procedure Rules 2005 (NSW);
Vexatious Proceedings Act 2008 (NSW);
Cases Cited: Application by Michael Bar-Mordecai [2015] NSWSC 1695;
Beecham (Austrlia) Pty LTd v Roque Pty Ltd (1987) 11 NSWLR 1;
Viavattene v Attorney General (NSW) [2015] NSWCA 44;
Viavattene v Morton [2015] NSWSC 1693
Category: Principal judgment
Parties: Peter Stephen Viavattene (Plaintiff); Bruce Morton (First Defendant); Evelyn Birch (Second Defendant); John Gilleat (Third Defendant);
Representation:
Counsel: Self-Representated (Plaintiff)
No appearance (First, Second and Third Defendant)
Solicitors:

File Number(s): 2013/178940

judgment

This matter came before me on 4th December 2015 for Mr Viavattene to show cause why his appeal should not be dismissed as incompetent (see Viavattene v Morton [2015] NSWSC 1693 at [20] – [24]).
On 13th November 2015 I had found that the notice of motion he was attempting to file seeking to institute contempt of court proceedings against each of the named defendants is a proceeding of a kind to which the order of the Court of Appeal in Viavattene v Attorney General (NSW) [2015] NSWCA 44 relates. I stayed the proceeding under s 8(7)(a) Vexatious Proceedings Act 2008 (NSW).
The proceeding is a purported appeal from a decision of Magistrate O’Brien (as the Deputy-Chief Magistrate then was) of the Local Court made on 4th June 2013 refusing to make an order for the protection of Mr Viavattene and other members of his family under Crimes (Domestic and Personal Violence) Act 2007 (NSW) (CDPV Act). At [8] of my previous decision I briefly described the proceeding in these terms:

The principal proceedings in which Mr Viavattene wishes to file the motion purport to be an appeal brought as of right under s 39 Local Court Act 2007 (NSW), and also s 52 Crimes (Appeal and Review) Act 2001 (NSW). Sections 60, 62 and 68(a) Supreme Court Act 1970 (NSW) are also invoked. Leaving aside for the moment questions of competency, the appeal is said to be from the decision of Magistrate O’Brien (as the Deputy-Chief Magistrate then…

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 Morton

Details

AGLC: Viavattene v Morton [2015] NSWSC 1893
Case: [2015] NSWSC 1893
Decision Date: 11 December 2015

CaseChat Overview and Summary

The appeal in Viavattene v Morton was brought before the court by the plaintiff, who sought to dismiss the appeal of the defendants as incompetent. The plaintiff aimed to obtain a default judgment due to the absence of an appearance or defence filed by the defendants. The defendants, in turn, argued that their failure to appear or file a defence did not render the appeal incompetent. The legal issues before the court involved the competency of the appeal and the procedural requirements for filing documents in relation to an appeal under the Crimes (Appeal and Review) Act 2001. The court had to determine whether the appeal was grounded in statute and whether the procedural requirements for filing documents had been met.

The court's reasoning centred on the statutory framework governing the appeal process. It was established that the appeal originated from an apprehended violence order and that the right to appeal was provided under section 84 of the Crimes (Domestic and Personal Violence) Act 2007. The court noted that the procedure for such appeals was outlined in the Crimes (Appeal and Review) Act 2001. The court held that the plaintiff's appeal was not competent because the appeal process did not permit a default judgment to be made due to the absence of an appearance or defence. The court emphasised that the failure of the defendants to appear or file a defence did not, in and of itself, render the appeal incompetent. Consequently, the court dismissed the plaintiff's application to dismiss the defendants' appeal as incompetent.

The final orders of the court were that the plaintiff's application to dismiss the defendants' appeal as incompetent was dismissed. The court did not grant the plaintiff a default judgment and found that the appeal was not rendered incompetent solely due to the absence of an appearance or defence by the defendants. The appeal proceeded, and the court did not impose any further orders concerning the procedural requirements for filing documents in relation to the appeal.

Orders