Viavattene v Morton and Ors [2015] NSWSC 1693

Viavattene v Morton and Ors [2015] NSWSC 1693

The appeal and proposed contempt motion depended on contentions inconsistent with the finding that, following realignment, the access track to adjoining land no longer encroached on 1520 Numinbah Road, Chillingham. They were therefore proceedings of a kind to which the Court of Appeal's vexatious proceedings order related, and Mr Viavattene required leave under s 16 of the Vexatious Proceedings Act 2008 (NSW) before instituting them. In the absence of a substantially compliant leave application, the Registry was correct to reject the notice of motion, and the existing proceedings should be stayed under s 8(7)(a).

Jurisdiction
Australia
Judgment Date
13 November 2015
Procedural Posture
Local Court Appeal and Proposed Notice of Motion for Contempt of Court / Duty Judge Determination of Whether Filing Was Restricted by a Vexatious Proceedings Order; Stay Ordered and Show Cause Listing Directed
Outcome
Proceedings declared to be covered by the Court of Appeal's vexatious proceedings order and stayed; matter listed for Mr Viavattene to show cause why the appeal should not be dismissed as incompetent.
Legal Topics
['effect of Vexatious Proceedings Order' 'leave to Institute Proceedings' 'stay of Proceedings' 'competency of Appeal From Dismissal of Apprehended Violence Order Application' 'statutory Right of Appeal']
['vexatious Proceedings' 'contempt of Court' 'apprehended Violence Orders' 'appeals'] ['effect of Vexatious Proceedings Order' 'leave to Institute Proceedings' 'stay of Proceedings' 'competency of Appeal From Dismissal of Apprehended Violence Order Application' 'statutory Right of Appeal']

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Procedural Posture

Local Court Appeal and Proposed Notice of Motion for Contempt of Court / Duty Judge Determination of Whether Filing Was Restricted by a Vexatious Proceedings Order; Stay Ordered and Show Cause Listing Directed

Legal Issues

  1. 1 ["Whether the appeal and proposed contempt motion were proceedings of a kind to which the Court of Appeal's vexatious proceedings order related." 'Whether Mr Viavattene required leave under s 16 of the Vexatious Proceedings Act 2008 (NSW) before instituting the proposed contempt proceedings.' 'Whether the Registry was correct to reject the filing of the notice of motion.' "Whether the appeal was incompetent because no appeal lay to the Supreme Court from the Local Court's dismissal of the apprehended violence order application."]

Ratio Decidendi

The appeal and proposed contempt motion depended on contentions inconsistent with the finding that, following realignment, the access track to adjoining land no longer encroached on 1520 Numinbah Road, Chillingham. They were therefore proceedings of a kind to which the Court of Appeal's vexatious proceedings order related, and Mr Viavattene required leave under s 16 of the Vexatious Proceedings Act 2008 (NSW) before instituting them. In the absence of a substantially compliant leave application, the Registry was correct to reject the notice of motion, and the existing proceedings should be stayed under s 8(7)(a).

Court Disposition

Proceedings declared to be covered by the Court of Appeal's vexatious proceedings order and stayed; matter listed for Mr Viavattene to show cause why the appeal should not be dismissed as incompetent.

Orders

  • ['Declare that these proceedings are proceedings of a kind to which the order of the Court of Appeal under s 8(7)(c) of the Act pronounced on 13th March 2015 relate;' 'Subject to order 3, under s 8(7)(a) of the Act stay these proceedings;' 'Direct the Registrar to list the matter before me at 9:30 am on Friday, 4th...