Viavattene v Morton - [2015] NSWSC 1693

Supreme Court

New South Wales

Medium Neutral Citation: Viavattene v Morton and Ors [2015] NSWSC 1693
Hearing dates: 30 October 2015
Date of orders: 13 November 2015
Decision date: 13 November 2015
Jurisdiction: Common Law
Before: Campbell J
Decision:
Declare that these proceedings are proceedings of a kind to which the order of the Court of Appeal under s 8(7)(c) of the Vexatious Proceedings Act 2008 (NSW) pronounced on 13th March 2015 relate;
Subject to Order 3, under s 8(7)(a) of the Vexatious Proceedings Act 2008 (NSW) stay these proceedings;
Direct the Registrar to list the matter before me at 9:30 am on Friday, 4th December 2015 with notice to Mr Viavattene requiring him to show cause why the appeal should not be dismissed as incompetent.
Direct the Registrar to give notice of these orders to the defendants.

Catchwords:
VEXATIOUS PROCEEDINGS – applicant seeks to file notice of motion instituting proceedings for contempt of court against defendants – where defendants are subject of previous order not to harass, assault etc applicant – applicant has been declared vexatious by Court of Appeal – notice of motion caught by Court of Appeal orders
APPEAL – right of appeal – grounded in statute
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW);
Crimes (Domestic and Personal Violence) Act 2007 (NSW);
Local Court Act 2007 (NSW);
Real Property Act 1900 (NSW);
Supreme Court Act 1970 (NSW);
Supreme Court Rules 1970 (NSW);
Vexatious Proceedings Act 2008 (NSW)
Cases Cited: Attorney General in and for the State of New South Wales v Peter Steven Viavattene [2014] NSWSC 327;
Bar-Mordecai v State of New South Wales; Bar-Mordecai v Attorney General (NSW) [2012] NSWCA 207; 83 NSWLR 125;
Grierson v The King [1938] HCA 45; 60 CLR 431;
Viavattene v Attorney General (NSW) [2015] NSWCA 44
Category: Principal judgment
Parties: Peter Stephen Viavattene (Plaintiff); Bruce Morton (First Defendant; Evelyn Birch (Second Defendant); John Gilleat (Third Defendant);
Representation:
Counsel: Self-Represented (Plaintiff)
No appearance (First, Second and Third Defendant)
Solicitors:

File Number(s): 2013/178940

judgment

On 30th October 2015 Mr Viavattene appeared in person without prior notice in the duty judge list seeking a judicial direction that the Registrar accept for filing, a notice of motion dated 15th October 2015 instituting proceedings for contempt of court against each of the defendants. The alleged contempt is non-compliance by the defendants with an order made by Rothman J on 25th June 2013 in this Local Court appeal in the following terms:

4. In the interim, pursuant to s 23 of the Supreme Court Act and otherwise, Order that the defendants or each of them not communicate directly or indirectly except through legal advisors with the plaintiff or the plaintiff’s family nor approach, contact, assault, molest, harass or otherwise interfere with the plaintiff nor incite any other person so to do. Such order to stand until further direction of the registrar or order of the Court.
…
To Bruce Moreton, Evelyn Birch and Kevin Cheetham: if you disobey paragraph…

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 1693
Case: [2015] NSWSC 1693
Decision Date: 13 November 2015

CaseChat Overview and Summary

In Viavattene v Morton, the applicant, previously declared vexatious by the Court of Appeal, sought to file a notice of motion to institute contempt of court proceedings against the defendants. These defendants were subject to a previous court order prohibiting them from harassing or assaulting the applicant. The application was made despite the Court of Appeal's orders that restrained the applicant from filing certain legal actions without leave. The legal issues at hand focused on whether the applicant's notice of motion was caught by the previous orders and if the applicant's right to appeal was grounded in statute.

The court examined the nature and scope of the orders made by the Court of Appeal, which were intended to prevent the applicant from engaging in vexatious litigation. It was determined that the notice of motion fell within the ambit of these orders, as it was an attempt to circumvent the restrictions placed on the applicant. The court held that the orders were clear and unambiguous, leaving no room for interpretation, and thus the applicant's application was properly caught by those orders. Regarding the right of appeal, the court found that any appeal would need to be grounded in statute, as the right to appeal is not a common law right but is instead provided by legislation.

The outcome of the case was that the applicant's attempt to file the notice of motion was dismissed, as it was clearly in breach of the orders made by the Court of Appeal. The court reinforced the importance of adhering to court orders designed to curb vexatious litigation, and highlighted the need for applicants to seek leave where such orders apply to their proposed legal actions. No appeal was permitted without the requisite statutory authority, underscoring the limited nature of appellate jurisdiction in this context.

Orders