Viavattene v Morton
[2011] NSWSC 1682
•19 December 2011
Supreme Court
New South Wales
Medium Neutral Citation: Viavattene v Morton [2011] NSWSC 1682 Hearing dates: 15 December 2011 Decision date: 19 December 2011 Before: Schmidt J Decision: 1. The orders sought be refused.
2. The motion be stood over, pending determination of the appeal.
3. Mr and Mrs Viavattene must bear the defendants' costs of the hearing, as agreed or assessed.
Catchwords: PROCEDURE - notice of motion - orders sought refused - costs Legislation Cited: Civil Procedure Act 2005
Supreme Court Act 1970
Uniform Procedure Rules 2005Cases Cited: Peter Viviattene v Bruce Morton (Supreme Court of New South Wales, McCallum J, 27 May 2011, unreported)
Peter Viviattene v Bruce Morton (Supreme Court of New South Wales, Kirby J, 7 June 2011, unreported)
Peter Viviattene v Bruce Morton (Supreme Court of New South Wales, Davies J, 19 July 2011, unreported))
Peter Viviattene v Bruce Morton (Supreme Court of New South Wales, Latham J, 19 September 2011, unreported)
Peter Viviattene v Bruce Morton (Supreme Court of New South Wales, Latham J, 22 September 2011, unreported)Category: Procedural and other rulings Parties: Beverley Viavattene (First Plaintiff)
Peter Viavattene (Second Plaintiff)
Bruce Morton (First Defendant)
Evelyn Birch (Second Defendant)Representation: Mr T Lynch (Defendants)
Ms Viavattene (unrepresented)
Ellis & Baxter Solicitors (Defendants)
File Number(s): 2011/162069 and 2011/152708
Judgment
On 6 December 2011, Mr and Mrs Viavattene brought a motion in two proceedings which they had commenced this year against their neighbours, the defendants Mr Morton and Ms Birch. Sixteen orders were sought in the motion, but Mrs Viavattene explained that it was only orders 6 to 16 which were pressed. Orders 1 to 5 have been dealt with by Tobias AJA, in relation to proceedings that they have brought in the Court of Appeal.
The two proceedings both concern access to a property located at Chillingham, which Mr and Mrs Viavattene own. In the first proceedings, Mr Viavattene sought an injunction to stop the defendants trespassing on their property. In the second proceedings, brought by way of a statement of claim, Mr and Mrs Viavattene also sought an injunction and in addition, damages for economic loss and non-economic compensation and costs.
The orders pressed in the December motion were:
"6. All Costs are reserved to the final hearing.
7 Costs are awards to the plaintiffs.
8 That the amended Statement of Claim with attached Exhibits 'V1' to 'V13' are accepted by the Court in the proceeding (2011/162069 & 2011/152708) and in the Court of Appeal.
9 That the final hearing in the proceedings 2011/162069 & 2011/152708 is expedited to facilitate the just resolution of the proceedings; as the Plaintiffs' DVD Evidence ( Exhibit 'V4 ') clearly demonstrates that the plaintiffs are, being without doubt, the true victims in this matter before the Supreme Court of NSW
10. That the Plaintiffs 50 minutes of DVD footage of labelled Exhibit 'V4' and attached to the amended statement of claim, be accepted in the proceedings 2011/162609 & 2011/152708 and in the Court of Appeal and not prevented from being used as evidence because it is crucial evidence that shows exactly what went on at XXXX XXXXX XXX Rd, Chillingham NSW.
11 That the survey by Barry Green in "Exhibit BRG1" for the defence is struck out because it was made unlawfully, and the surveyors, engaged by the defendants, were trespassing on the plaintiffs' property without the plaintiffs consent. The defendants can't get a survey to help their purpose; it's against the law under legislation.
12 That the survey by Barry Green is not accepted as evidence in these proceedings because the Deposited Plan and Title Search of the Plaintiffs property at XXXX XXXXX XXX Rd, Chillingham NSW, ( Exhibit 'V2') do not show any easement for access or right of carriageway through or over the Plaintiffs property exists has been registered on title.
13 That the appropriate legislation is applied in the matters because allowing the defendants Bruce Morton, Evelyn Birch and associates to intimidate, harass, stalk and assault the plaintiffs and use their vehicles as weapons on the plaintiffs property is contrary to the law, as they have committed criminal offences that have been recorded as DVD evidence.
14 That the Interim APVO's labelled Exhibit 'V10' attached to the amended statement of claim in the proceedings 2011/162609 & 2011/152708 be accepted as new evidence in these proceedings and in the Court of Appeal because violence against women should not be tolerated and allowing the first defendant, a man, to get away with his crimes puts women's rights back 100 years.
15 That all correspondence to the plaintiff is also sent via e-mail.
16 That the document of Alesia Murray Conveyancing ( Exhibit 'V2' ) and Plaintiff's Torrens Title and Deposited Plan ( Exhibit ' V1 ') is the plaintiffs' proof of ownership and that there is no road or easement registered on title."
The relief sought was supported by affidavits sworn by both Mr and Mrs Viavattene, as well as other documents which had earlier been tendered in these proceedings before Davies J and Latham J, which went to the merits of the claims which Mr and Mrs Viavattene wish to pursue. Not all of this material was obviously relevant to the matters which I have to decide, but it was received on the basis that it explained the submissions Mrs Viavattene advanced, particularly in relation to her application for expedition of the hearing of the two matters.
The orders pressed were opposed by the defendants, apart from order 15, to which I will return.
The history of the proceedings
In May 2011, McCallum J made an order under r 7.36 of the Uniform Civil Procedure Rules 2005, that Mr and Mrs Viavattene be referred to the pro bono panel for legal assistance (see Peter Viviattene v Bruce Morton (Supreme Court of New South Wales, McCallum J, 27 May 2011, unreported). They obtained such assistance from counsel prepared to appear for them and also, it seems, later instructed a firm of solicitors, but they appeared unrepresented at the hearing before me and on other, earlier occasions. Mrs Viavattene appeared both for herself and her husband, without objection. She explained that they considered that part of their difficulties was as the result of their solicitors having ceased to act, shortly prior to one of the earlier hearings.
In June 2011, Kirby J, also sitting as duty judge, dealt with an urgent request made by Mr and Mrs Viavattene that an injunction be issued in their favour (see Peter Viviattene v Bruce Morton (Supreme Court of New South Wales, Kirby J, 7 June 2011, unreported)) . His Honour refused that application, there being no relevant evidence before him on which the orders sought could rest. In giving reasons his Honour drew attention to the issues which needed to be addressed by Mr and Mrs Viavattene and their solicitors.
The matter came before Davies J, also sitting as duty judge, in July 2011, after affidavits which both Mr and Mrs Viavattene and the defendants had sworn and filed. Again an urgent injunction was sought by Mr and Mrs Viavattene (see Peter Viviattene v Bruce Morton (Supreme Court of New South Wales, Davies J, 19 July 2011, unreported)) . His Honour noted that the principal issue in the case appeared to be the precise extent of Mr and Mrs Viavattene's land, which needed to be ascertained in order to determine whether or not there had been any trespass on Mr and Mrs Viavattene's land, as they complained. Their case was that an access road which leads to a gateway onto the defendants' land, runs across their property and is not part of a public road reserve.
Davies J noted that in evidence was a survey relied on by the defendants. It had been prepared by a surveyor who had sworn an affidavit which was also in evidence. His Honour noted that the plaintiffs had not put on any survey evidence, or other evidence which showed that the survey relied on by the defendants was not accurate. Mr and Mrs Viavattene relied on their affidavit evidence and other material and submissions which Mrs Viavattene made about various matters, including alleged corruption and criminality on the part of surveyors and the Council.
His Honour concluded that the evidence had not established that there was any serious question to be tried and that in the circumstances, an injunction pending the final hearing had to be refused. His Honour also noted that the evidence was complete and, accordingly, gave the parties leave to approach the list clerk for an early hearing date.
In September 2011, Latham J dealt with a motion filed by the defendants, seeking orders that the first proceedings (matter number 152708 of 2011) in which Mr Viavattene had sought only injunctive relief, had been determined; that the Court was functus; and that an order for costs should be made in their favour. Her Honour considered Davies J's decision and concluded that the substance of the proceedings had been determined by his Honour and made the orders sought (see Peter Viviattene v Bruce Morton (Supreme Court of New South Wales, Latham J, 19 September 2011, unreported)). That decision left the second matter (matter number 162069 of 2011) still on foot.
The hearing proceeded and on 22 September 2011, Latham J dealt with the balance of the defendant's motion, seeking orders that the statement of claim in matter number 162069 be struck out and that the proceedings be dismissed as vexatious, involving an abuse of process and disclosing no reasonable cause of action (see Peter Viviattene v Bruce Morton (Supreme Court of New South Wales, Latham J, 22 September 2011, unreported)). Her Honour made the following orders:
"(1) The plaintiffs' statement of claim filed 17 May 2011 and annexures are struck out.
(2) The plaintiffs to provide security for the costs of the first and second defendants by paying the sum of $50,000 into Court on or before 11 November 2011.
(3) The proceedings against the first and second defendants are stayed until security for costs is provided in accordance with order 2.
(4) If security for costs is not provided in accordance with order 2, the proceedings against the fist and second defendants are to be dismissed with costs.
(5) Subject to satisfaction buy the plaintiffs of order 2, the plaintiffs are to file and serve an amended statement of claim on or before 2 December 2011.
(6) The plaintiffs' notice of motion of 16 August 2011 is dismissed."
Mr and Mrs Viavattene have pursued an appeal. The terms of the leave sought was not put before me, but it is common ground that the appeal is listed for directions before the Registrar of the Court of Appeal in February 2012. It has not yet been given a hearing date. It has come before Tobias AJA, who ordered on 7 November 2011:
"1. I order that matters 2011/162069 and 2011/152708 be consolidated and that evidence in one is to be evidence in the other.
2. I extend the time for the plaintiffs to file and serve an amended statement of claim to 4pm on 14 December 2011.
3. By consent, I stay order 4 made by Latham J on 22 September 2011 until further order.
4. I direct that the proceedings be listed before the Registrar on Thursday 15 December 2011 at 9.30am.
5. I direct the plaintiffs to file and serve a summons seeking leave to appeal from the judgment of Davies J of 19 July 2011 and that of Latham J of 22 September 2011 on or before 14 December 2011."
The orders sought in the 6 December motion must be refused
It is apparent from the orders which Latham J made on 19 and 22 September, that the proceedings in matter number 152708 of 2011 have been dismissed and that the proceedings in matter number 162069 of 2011 have been stayed, the order for security of costs not having been met by Mr and Mrs Viavattene. The orders made by Tobias AJA did not disturb that position.
From the submissions which Mrs Viavattene advanced, it is apparent that she is incensed at the course which the proceedings have taken and the refusal of the relief she and her husband have sought. She believes that the decisions of Davies and Latham JJ are clearly wrong and unjust; and that they do not accord with the requirements of the Civil Procedure Act 2005, particularly the obligation imposed on the Court to 'facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings' (see s 56). She also perceives the approach adopted to have departed from various other statutory requirements, with the result that she and her husband have been victimised and discriminated against, at a cost to their health and right to quiet enjoyment of their property, despite ongoing harassment by the defendants. Accordingly, she seeks an urgent hearing on the merits of the claims which she and Mr Viavattene wish to advance.
She also complains that the consequence of the orders made is that proceedings in other courts which she and Mr Viavatenne wish to pursue have been adversely affected and that police and other officials do not treat seriously her ongoing complaints of trespass and harassment by the defendants, because of the ongoing litigation in this Court.
In those circumstances, Mrs Viavattene presses the making of the orders sought, relying on various statutory provisions, including s 66 of the Supreme Court Act 1970, for example, which permits the Court at any stage of the proceedings, to grant injunctive relief.
I am satisfied that the course urged by Mrs Viavattene may not be acceded to.
No matter how fervently Mrs Viavatenne holds the views she pressed upon the Court, the position is that I, sitting as duty judge, have no power to grant the relief pressed. Until the appeal from the decisions which have been made is dealt with by the Court of Appeal, or the orders which have been made in the proceedings are otherwise set aside, or perhaps in the case of the orders made by Latham J on 22 September as to security, satisfied, no final hearing of the two matters which Mr and Mrs Viavatenne wish to pursue, can be programmed. The defendants' motion succeeded, with the result that one matter stands dismissed and the other stayed, until Mr and Mrs Viavattene comply with the orders made by Latham J. They have challenged those orders on appeal, but it has not yet been determined. In those circumstances, the orders may not simply be ignored. They are binding.
I understand from Mrs Viavattene's submissions that she and her husband are not in a financial position which would enable them to provide the security ordered, to be provided. There was no evidence led before me about their financial circumstances. No matter how sympathetic I might be to their position, the fact remains that binding orders have been made and until set aside, they must be complied with.
Accordingly the expedition of the hearing of these two matters which has been sought may not be granted, nor can the application for leave to amend the statement of claim, or the evidentiary rulings which are sought, be entertained. In the case of evidentiary rulings, they must be dealt with at the hearing.
It follows that but for one matter, the relief sought may not be granted.
Communication with Mr and Mrs Viavattene
Mr and Mrs Viavattene live outside Sydney. Order 15 sought that 'all correspondence to the plaintiff is also sent via e-mail'. There was no objection from the defendants to such communication being made with Mr and Mrs Viavattene. It is apparent from the file that there has been communication with Mrs Viavattene by email.
There does seem to be some question as to whether the Court file has accurate information as to where the Court's communications with Mr Viavattene should be sent. In the circumstances, Mr and Mrs Viavattene should formally notify the Court and I suggest the Court of Appeal, as to both their current mail and email addresses. That will ensure that there can be effective communication with both of them.
Orders
In the circumstances, the orders sought must be refused, at this time. I will not dismiss the motion at this stage. If Mr and Mrs Viavattene succeed on their appeal, the leave sought to amend the statement of claim, which I observe appears to address various difficulties with the original pleadings, and the application for expedition, may then be dealt with. The evidentiary rulings sought must be dealt with, as I have said, by the trial judge.
The usual order would be that Mr and Mrs Viavattene must bear the defendants' costs of the hearing. In the circumstances I can see no reason to depart from the usual rule.
For those reasons, I order that:
1. The orders sought be refused.
2. The motion be stood over, pending determination of the appeal.
3. Mr and Mrs Viavattene must bear the defendants' costs of the hearing, as agreed or assessed.
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Decision last updated: 14 February 2012
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