Viavattene v Tweed Shire Council

[2013] NSWCA 331

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Viavattene v Tweed Shire Council [2013] NSWCA 331

Hearing dates:

19 September 2013

Decision date:

19 September 2013

Before:

Leeming JA;
Tobias AJA

Decision:

(1) Extend the time within which to apply for leave to appeal pursuant to UCPR r 51.10(2).

(2) Grant leave to the Attorney General to be heard as amicus on the basis that he will neither seek nor bear costs.

(3) Grant leave to appeal from so much of order three made by Barr AJ on 28 June 2013 as states:

"and remit the matter to the Local Court sitting at Murwillumbah for redetermination in accordance with these directions."

(4) Direct the Council to advise the Registrar and the applicant within 14 days whether it consents to orders allowing the appeal in part, setting aside that part of order three made on 28 June 2013 and otherwise dismissing the appeal with no order as to costs.

(5) In the event that the Council does not consent, list the matter for directions before the Registrar at a date to be fixed for the hearing of the appeal.

(6) Otherwise refuse leave to appeal on the basis that there be no order as to the costs of the application for leave to appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - practice and procedure - appeal from convictions in Local Court - primary judge set aside convictions and remitted matter to Local Court - remitter should not have occurred - otherwise no error warranting grant of leave - orders formulated to permit disposition of appeal by consent

Legislation Cited:

Uniform Civil Procedure Rules 2005

Category:

Principal judgment

Parties:

Peter Viavattene (applicant)
Tweed Shire Council (first respondent)
Local Court of New South Wales (second respondent)

Representation:

Counsel:
BG Viavattene (lay advocate on behalf of the applicant)
H El-Hage (Attorney General of New South Wales as amicus curiae)
Solicitors:
HWL Ebsworth Lawyers (first respondent)
Crown Solicitor's Office (second respondent)

File Number(s):

2013/230117

 Decision under appeal 

Citation:

Viavattene v Tweed Shire Council & Anor [2013] NSWSC 838

Date of Decision:

2013-06-28 00:00:00

Before:

Barr AJ

File Number(s):

2013/293341

Judgment

1. JUDGMENT of the COURT delivered by LEEMING JA: Before us is an application for leave to appeal from the decision of Barr AJ made on 28 June 2013: [2013] NSWSC 838. The application was filed slightly out of time, for which an explanation was provided. The Court is minded to extend the time pursuant to Uniform Civil Procedure Rules 2005, r 51.10(2).

1. Subject to one thing which was raised in argument, which will be dealt with in the orders, I see no basis for appellable error in the reasons of his Honour Barr AJ, which comprehensively describe the factual and procedural background arising out of the applicant's convictions of offences relating to obstructing an access road bordering his property.

1. The essence of that conclusion turns on the evidence that was before his Honour concerning the road. The road was realigned. That realignment took place on 11 November 2010.

1. Before his Honour, evidence was served by the first respondent (Council) in the form of an affidavit of the surveyor Mr Barry Richard Green. That evidence was read over the objection of the applicant. The primary judge gave the applicant a short adjournment to formulate the basis of that objection. An application was then made for that evidence to be excluded, including on the bases that consent had not been given to the surveyor to come onto the property and there was prejudice from its late service.

1. The objection was debated over some four pages of transcript (transcript pages 29 to 33) but ultimately his Honour in the exercise of his discretion formed the view that late service had been explained and there had been no material prejudice to the applicant.

1. In my view there is no basis shown for interfering with his Honour's decision to admit that evidence. The effect of that evidence was that after its realignment the access road ceased to encroach on the applicant's land. Essentially for that reason his Honour set aside convictions in relation to obstruction of the road before the realignment but dismissed the appeal against those convictions postdating the realignment of the road.

1. I have read the written submissions and heard the oral submissions of Mrs Viavattene in support of the application for leave, but, save for one thing, nothing there persuades me that there is any basis for demonstrating appellable error in the balance of his Honour's judgment. The exception to which I referred relates to order three made by his Honour. His Honour set aside the convictions, fines and costs orders from the first and second infringement notices but also remitted the matter to the Local Court sitting at Murwillumbah for redetermination.

1. In my opinion his Honour should merely have set aside those convictions, fines and costs orders and not remitted the matter to Local Court. As raised during the course of argument, this Court, which is assembled solely to determine whether or not leave to appeal should be given from his Honour's judgment, does not have power to allow an appeal. However and noting in particular that the Council has submitted to the proceeding in this Court save as to costs, I propose the following orders:

(1) Extend the time within which to apply for leave to appeal pursuant to UCPR, r 51.10(2).

(2)   Grant leave to the Attorney General to be heard as amicus on the basis that he will neither seek nor bear costs.

(3)   Grant leave to appeal from so much of order three made by Barr AJ on 28 June 2013 as states:

"and remit the matter to the Local Court sitting at Murwillumbah for redetermination in accordance with these directions."

(4)   Direct the Council to advise the Registrar and the applicant within 14 days whether it consents to orders allowing the appeal in part, setting aside that part of order three made on 28 June 2013 and otherwise dismissing the appeal with no order as to costs.

(5)   In the event that the Council does not consent, list the matter for directions before the Registrar at a date to be fixed for the hearing of the appeal.

(6)   Otherwise refuse leave to appeal on the basis that there be no order as to the costs of the application for leave to appeal.

1. The reasons and the orders that I have just indicated are the reasons and the orders of the Court.

1. [Note: On 24 September 2013 Council advised that it consented to the orders proposed, and on 4 October 2013 the following orders were made by consent:

1. The Draft Notice of Appeal is to stand as a Notice of Appeal.

2. Appeal allowed in part.

3. Set aside that part of order 3 made on 28 June 2013 which states "and remit the matter to the Local Court sitting at Murwillumbah for redetermination in accordance with these directions".

4. Otherwise dismiss the appeal with no order as to costs.]

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Decision last updated: 08 October 2013