Application by Viavattene [2013] NSWSC 299

Supreme Court New South Wales

Medium Neutral Citation: Application by Viavattene [2013] NSWSC 299 Hearing dates: 26 - 27 March 2013 Decision date: 27 March 2013 Jurisdiction: Common Law Before: Button J Decision: The application for leave to institute proceedings is refused. Catchwords: PROCEDURE - application to institute proceedings under s 14 of the Vexatious Proceedings Act 2008 - no affidavit complying with s 14(3) filed - application for leave refused Legislation Cited: Vexatious Proceedings Act 2008 Cases Cited: Application by Michael Bar-Mordecai [2011] NSWSC 236 Application by Michael Bar-Mordecai [2012] NSWSC 501 Bar-Mordecai v Attorney General (NSW); Bar-Mordecai v State of New South Wales [2012] NSWCA 207 Texts Cited: Australian Legal Dictionary, 4th ed (2011) Lexis Nexis Butterworths Category: Consequential orders Parties: Beverley Georgina Viavattene File Number(s): 2012/169892 Publication restriction: Nil

EX TEMPORE Judgment 1BUTTON J: Yesterday, Ms Viavattene (to whom I shall refer as "the applicant") attended the courtroom in which I was sitting as duty judge. Although no matter had been referred to me, and no matter appeared in the list, and no documents had been filed, I permitted the applicant to approach the Bar table and briefly explain what she was seeking to do. She made some oral submissions and tendered a letter, Exhibit A, resisting the proposition that she was or is a vexatious litigant. She referred to an issue, seemingly of long-standing, to do with a neighbour who is said, amongst other things, to be driving on her property near the township of Chillingham, west of Murwillumbah. At that stage the applicant was unrepresented and there was, of course, no opponent. 2I adjourned the matter until today, with the concurrence of the applicant, so that I could familiarise myself with the holdings of the court with regard to any previous proceedings pertinent to the applicant. I also suggested to the applicant that she may care to seek legal advice, perhaps from a metropolitan legal centre. 3Investigations reveal that on 25 March 2013 (that is, on the day before the applicant attended my Court) Fullerton J ordered, pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008 ("the Act") that the applicant be prohibited from instituting proceedings in this state, other than with the leave of an appropriate court under that Act. Ancillary orders were also made be her Honour. 4Today, I have drawn that position to the attention of the applicant and suggested to her that, if she were to make any sort of application or submission to me, she would first need to obtain leave to do so, pursuant to Part 3 of the Act, and in particular s 14. It is noteworthy that the definition of "[i]nstituting proceedings" contained in s 5(1)(d) of the Act includes steps "that may be necessary to start an appeal". 5I repeated my suggestion today that the applicant may care to seek legal advice. However, she is determined to proceed today, and I regard her application as one for leave to institute proceedings pursuant to s 14 of the Act, preliminary to the various orders sought by her contained in Exhibit B. 6I do not consider that such an application, at its very earliest stage, requires service of process upon any opponent. Indeed, s 14(4) prohibits such a step. And the discussion of the three stage process at [16] of the judgment of the Court of Appeal in Bar-Mordecai v Attorney General (NSW); Bar-Mordecai v State of New South Wales [2012] NSWCA 207 supports that interpretation, as does the discussion by Garling J in Application by Michael Bar-Mordecai [2012] NSWSC 501 at [13] to [14], and the fact that Schmidt J proceeded in Chambers and without an opponent in Application by Michael Bar-Mordecai [2011] NSWSC 236. 7The application may be disposed of quickly. Pursuant to s 14(3), it is a mandatory requirement of any such application for leave that the applicant file an affidavit that has three attributes. First, the affidavit must list all occasions on which an applicant has applied for leave, either under s 14 or earlier legislation. Secondly, the affidavit must contain a list of all other proceedings instituted by the applicant in Australia, whether before or after the commencement of the section on 1 December 2008. Thirdly, any such affidavit must disclose "all facts material to the application, whether supporting or adverse to the application, that are known to the applicant." 8A useful definition of the word "affidavit" is contained in the Concise Australian Legal Dictionary, 4th ed (2011) Lexis Nexis Butterworths, in which it is said that an affidavit is: "a written statement, made by a person who has sworn or affirmed, before a person authorised to administer the oath, that the contents of the statement are true, which may be used to support certain legal applications or as a substitute for oral testimony in court proceedings". 9A document answering that description has not been filed by the applicant. In the absence of such an application, I decline to receive into evidence for consideration the other affidavits upon which the applicant sought to rely. 10Pursuant to s 15 of the Act, it is mandatory for me to dismiss any such application if "the affidavit required by section 14 (3) does not substantially comply with that subsection". 11As I have said, no affidavit answering that description has been filed by the applicant; that is, an affidavit that complies substantially with the three requirements of s 14(3). 12Accordingly, pursuant to the structure of the Act, it is incumbent upon me to dismiss the application for leave to institute proceedings. 13I make the following order: (1)The application for leave to institute proceedings is refused.