Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Viavattene v Attorney General of New South Wales [2014] NSWCA 218 Hearing dates: 3 July 2014 Decision date: 03 July 2014 Before: Basten JA at [1]; Tobias AJA at [12] Decision: (1) To the extent that s 14 is engaged by the present application, waive the requirement in s 14(3) of the Vexatious Proceedings Act that the applicant file an affidavit complying with that provision. (2) Extend time to seek leave to appeal to the date of filing and serving the summons by which leave was sought. (3) Grant the applicant leave, pursuant to s 14 of the Vexatious Proceedings Act, to commence proceedings seeking leave and, if leave is granted, an appeal from the judgment and orders in the Common Law Division of 26 March 2014. (4) Pursuant to s 101(2) of the Supreme Court Act, grant the applicant leave to appeal against the judgment in the Common Law Division. (5) Pending the hearing and determination of the appeal, and pursuant to s 9 of the Vexatious Proceedings Act, order that the orders made by Bellew J on 26 March 2014 be varied so as not to apply to any appeal or application for leave to appeal from any conviction, sentence or order leading to imprisonment or to any application for bail. (6) Order that the costs of the application be costs in the appeal. (7) Grant leave to each party to seek further directions from the Registrar as to the conduct of the 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 - extension of time - whether arguable case of error - effect of orders under appeal - orders made in absence of applicant - whether arguable case of procedural unfairness - whether orders arguably too broad - grant of leave PRACTICE and PROCEDURE - application for leave to appeal - appeal from orders under Vexatious Proceedings Act - whether leave required to seek leave to appeal - whether orders should be varied to allow applicant to challenge his present incarceration PRACTICE and PROCEDURE - orders under Vexatious Proceedings Act - whether orders prevent appeal against criminal conviction and sentence - weight to be given to conduct in defending criminal proceedings - whether blanket orders justified Legislation Cited: Supreme Court Act 1970 (NSW), s 101 Vexatious Proceedings Act 2008 (NSW), ss 8, 9, 14 Cases Cited: Bar-Mordecai v State of New South Wales [2012] NSWCA 207; 83 NSWLR 125 Category: Procedural and other rulings Parties: Peter Viavattene (Applicant) Attorney General in and for the State of New South Wales (Respondent) Representation: Counsel: Applicant self-represented Mr D Galbraith, Solicitor (Respondent) Solicitors: Applicant self-represented State Crown Solicitor's Office (Respondent) File Number(s): CA 2014/138721 Decision under appeal Jurisdiction: 9111 Citation: Attorney General for New South Wales v Peter Steven Viavattene [2014] NSWSC 327 Date of Decision: 2014-03-26 00:00:00 Before: Bellew J File Number(s): SC 2012/232996 Judgment 1BASTEN JA: On 26 March 2014 Bellew J made orders in the Common Law Division under the Vexatious Proceedings Act 2008 (NSW) prohibiting Peter Steven Viavattene ("the applicant") from instituting proceedings in New South Wales without leave of the Court and staying all proceedings in New South Wales already instituted by the applicant: Attorney General for New South Wales v Viavattene [2014] NSWSC 327. 2The applicant requires leave to appeal from such orders: Supreme Court Act 1970 (NSW), s 101(2)(e) or (r). Because commencement of such proceedings seeking leave would itself involve the institution of proceedings prohibited by the orders made below, such leave may also be required pursuant to s 14 of the Vexatious Proceedings Act: cf Bar-Mordecai v State of New South Wales [2012] NSWCA 207; 83 NSWLR 125 at [21]-[22]. It is arguable that such an appeal falls within s 9 and thus does not require leave under s 14. The imposition of an additional leave requirement is superfluous. It is also arguably inappropriate where it is the very order which gives rise to the requirement for such leave which is sought to be challenged. 3Pursuant to s 14(3), the applicant is required to file an affidavit with the application setting out various matters specified in the section. No affidavit has been filed in compliance with that requirement, but no complaint is made by the respondent Attorney in that regard, who is content to assume that s 14 is not engaged by the proposed appeal. Such an affidavit would be entirely otiose: the obligation to comply with the requirement of s 14(3), if engaged, should be waived. 4The Attorney submitted that the applicant required leave under both paragraphs 101(2)(e) (dealing with interlocutory orders) and (r) (dealing with the amount in issue). It is not necessary to determine whether the orders made were interlocutory or final: it is not in dispute that the applicant requires leave to appeal. The Attorney also noted that the summons was filed 14 days out of time, but did not suggest that if an arguable case were established time should not be extended. 5The trial judge recorded two unsuccessful attempts by the Crown Solicitor to serve on the applicant the voluminous evidence sought to be tendered at the hearing. He made no finding that the material had in fact been served. Although there was evidence that the applicant knew of the hearing date, there was no finding that he had been properly served with the originating process. There may well be a factual dispute as to proper service. In any event, the hearing proceeded in the absence of the applicant, who now complains of a breach of procedural fairness and a failure to comply with s 8(3) of the Vexatious Proceedings Act. He has an arguable case in this respect. 6The trial judge identified numerous proceedings relied upon by the Attorney in seeking an order under the Vexatious Proceedings Act. These included: (1) proceedings in the Supreme Court over alleged trespass to property against the neighbours of the applicant and his family; (2) 21 proceedings in the Local Court of which 12 were applications by the applicant (alone or in company with his wife), but many of which involved charges laid against him; (3) an application to the High Court; (4) a list of proceedings brought by the local Council for breach of a road regulation prohibiting the placing of objects on a road so as to endanger the public; (5) proceedings involving a rent dispute between the applicant and his wife and a landlord in the Consumer, Trader and Tenancy Tribunal; (6) proceedings in the Supreme Court of Queensland, which were struck out, but the subject matter of which was not identified, and (7) employment proceedings brought in a Commonwealth Tribunal, Fair Work Australia. 7There may be an issue as to the way in which the conduct of a person in the course of proceedings brought against him (as distinct from those instituted by him), especially when in the criminal jurisdiction, should properly be brought into account on an application for orders under the Vexatious Proceedings Act. 8Many of the proceedings appear to arise out of a dispute over the boundaries to the land owned by the applicant and his wife, which appears to have been resolved by judgments of the Supreme Court. If that is so, there may be something to be said for the view that the applicant should be prevented from relitigating, directly or indirectly, a dispute as to the boundaries of that property. However, if as appears possible, the applicant's family has been the subject of abusive and threatening behaviour by third parties, to require him to seek leave from this Court before he can invoke legal protection for himself or his family is a large step, not lightly to be taken. 9There is an arguable case that the considerations noted in the last two paragraphs were not adequately addressed by the trial judge. The applicant should have leave to appeal. 10There is a further issue which arose in the course of the hearing, namely the extent to which, without leave of the Supreme Court, the applicant is able to appeal the order by which he is presently held in custody. That too raises an arguable issue as to the proper scope of the orders made. It is also a matter which requires the immediate attention of the Court. 11The Court should make the following orders: (1) To the extent that s 14 is engaged by the present application, waive the requirement in s 14(3) of the Vexatious Proceedings Act that the applicant file an affidavit complying with that provision. (2) Extend time to seek leave to appeal to the date of filing and serving the summons by which leave was sought. (3) Grant the applicant leave, pursuant to s 14 of the Vexatious Proceedings Act, to commence proceedings seeking leave and, if leave is granted, an appeal from the judgment and orders in the Common Law Division of 26 March 2014. (4) Pursuant to s 101(2) of the Supreme Court Act, grant the applicant leave to appeal against the judgment in the Common Law Division. (5) Pending the hearing and determination of the appeal, and pursuant to s 9 of the Vexatious Proceedings Act, order that the orders made by Bellew J on 26 March 2014 be varied so as not to apply to any appeal or application for leave to appeal from any conviction, sentence or order leading to imprisonment or to any application for bail. (6) Order that the costs of the application be costs in the appeal. (7) Grant leave to each party to seek further directions from the Registrar as to the conduct of the appeal. 12TOBIAS AJA: I agree with the orders proposed by the presiding judge for the reasons he has given. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 July 2014