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

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

Plaintiff entitled to extension of time and leave to appeal; Council failed to prove elements for first and second infringement notices and should have opportunity to adduce further evidence; convictions for fourth and seventh notices not justified based on admitted lack of breach; other convictions upheld; sentences set aside and remitted for reconsideration; costs lie where they fall.

Jurisdiction
Australia
Judgment Date
28 June 2013
Procedural Posture
Appeal From Local Court / Judgment on Leave to Appeal and Appeal
Outcome
Appeal allowed in part; extension of time and leave to appeal granted; convictions and penalties set aside in part; matters remitted to Local Court.
Legal Topics
['extension of Time' 'leave to Appeal' 'penalty Infringement Notices' 'roads Regulation' 'local Court Procedure']
['criminal Law' 'administrative Law' 'local Government'] ['extension of Time' 'leave to Appeal' 'penalty Infringement Notices' 'roads Regulation' 'local Court Procedure']

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Procedural Posture

Appeal From Local Court / Judgment on Leave to Appeal and Appeal

Legal Issues

  1. 1 ['Whether extension of time should be granted for leave to appeal' 'Whether leave to appeal should be granted' 'Whether convictions and penalties imposed in absence were justified' 'Whether placing objects on the access road breached Roads Regulation 2008 cl 11(1)(b)' 'Whether removal of gravel constituted an infringement under the Regulation']

Ratio Decidendi

Plaintiff entitled to extension of time and leave to appeal; Council failed to prove elements for first and second infringement notices and should have opportunity to adduce further evidence; convictions for fourth and seventh notices not justified based on admitted lack of breach; other convictions upheld; sentences set aside and remitted for reconsideration; costs lie where they fall.

Court Disposition

Appeal allowed in part; extension of time and leave to appeal granted; convictions and penalties set aside in part; matters remitted to Local Court.

Orders

  • ['Extend the time within which the plaintiff may apply for leave to appeal to the day on which his summons was filed.' 'Grant leave to appeal.' 'Set aside the convictions, fines and costs orders resulting from the first and second infringement notices and remit the matter to the Local Court sitting at Murwillumbah...