Viavattene v Morton and Ors [2015] NSWSC 1893

Viavattene v Morton and Ors [2015] NSWSC 1893

The purported appeal was incompetent because the Supreme Court had no express statutory appellate jurisdiction to entertain an appeal from the Local Court's refusal of apprehended personal violence orders in the circumstances. The specific appeal right was conferred by s 84 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), procedurally incorporating Part 3 of the Crimes (Appeal and Review) Act 2001 (NSW), and did not support the appeal brought in the Supreme Court. The defendants' non-appearance and failure to file a defence did not create a right to default judgment on an appeal or cure the want of competence.

Jurisdiction
Australia
Judgment Date
11 December 2015
Procedural Posture
Purported Appeal From a Local Court Decision Refusing Applications for Apprehended Personal Violence Orders / Plaintiff Required to Show Cause Why the Appeal Should Not Be Dismissed as Incompetent
Outcome
The appeal is dismissed as incompetent.
Legal Topics
['competency of Appeal' 'default Judgment on Appeals' 'filing of Documents' 'statutory Source of Appellate Jurisdiction' 'vexatious Proceedings Stay']
['vexatious Proceedings' 'appeals' 'apprehended Violence Orders' 'civil Procedure'] ['competency of Appeal' 'default Judgment on Appeals' 'filing of Documents' 'statutory Source of Appellate Jurisdiction' 'vexatious Proceedings Stay']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Purported Appeal From a Local Court Decision Refusing Applications for Apprehended Personal Violence Orders / Plaintiff Required to Show Cause Why the Appeal Should Not Be Dismissed as Incompetent

Legal Issues

  1. 1 ["Whether the plaintiff's purported appeal to the Supreme Court from the Local Court refusal of apprehended personal violence orders was competent." "Whether the defendants' failure to appear or file a defence entitled the plaintiff to default judgment or otherwise made the appeal competent." "Whether documents sent to a judge's chambers by fax, post or email were filed in accordance with the Uniform Civil Procedure Rules 2005 (NSW)." 'Whether the relevant statutory appeal provisions required an appeal from the Local Court AVO decision to be brought in the District Court.']

Ratio Decidendi

The purported appeal was incompetent because the Supreme Court had no express statutory appellate jurisdiction to entertain an appeal from the Local Court's refusal of apprehended personal violence orders in the circumstances. The specific appeal right was conferred by s 84 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), procedurally incorporating Part 3 of the Crimes (Appeal and Review) Act 2001 (NSW), and did not support the appeal brought in the Supreme Court. The defendants' non-appearance and failure to file a defence did not create a right to default judgment on an appeal or cure the want of competence.

Court Disposition

The appeal is dismissed as incompetent.

Orders

  • ['The appeal is dismissed as incompetent.']