Viavattene v Tweed Shire Council [2013] NSWCA 331

Viavattene v Tweed Shire Council [2013] NSWCA 331

Leave was not warranted except in relation to that part of Barr AJ's order remitting the matter to the Local Court. There was no basis to interfere with the discretionary admission of the surveyor's affidavit evidence, and that evidence supported the conclusion that after realignment the access road ceased to encroach on the applicant's land. However, after setting aside the convictions, fines and costs orders from the first and second infringement notices, Barr AJ should not have remitted the matter to the Local Court for redetermination.

Jurisdiction
Australia
Judgment Date
19 September 2013
Procedural Posture
Application for Leave to Appeal / Court of Appeal Application Filed Slightly Out of Time From Decision of Barr Aj; Leave Granted in Part and Final Orders Later Made by Consent
Outcome
Time extended; Attorney General granted leave to be heard as amicus; leave to appeal granted only as to the remitter order; Council later consented and the appeal was allowed in part by consent, with the remitter set aside and the appeal otherwise dismissed with no order as to costs.
Legal Topics
['appeal From Convictions in Local Court' 'extension of Time to Apply for Leave to Appeal' 'leave to Appeal' 'remitter to Local Court' 'admission of Surveyor Affidavit Evidence']
['appeal' 'practice and Procedure'] ['appeal From Convictions in Local Court' 'extension of Time to Apply for Leave to Appeal' 'leave to Appeal' 'remitter to Local Court' 'admission of Surveyor Affidavit Evidence']

Case Brief

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Procedural Posture

Application for Leave to Appeal / Court of Appeal Application Filed Slightly Out of Time From Decision of Barr Aj; Leave Granted in Part and Final Orders Later Made by Consent

Legal Issues

  1. 1 ['Whether time should be extended for the applicant to apply for leave to appeal.' "Whether there was appellable error in Barr AJ admitting the surveyor's affidavit evidence despite objection based on alleged lack of consent to enter the property and late service." 'Whether Barr AJ erred by remitting the set-aside convictions, fines and costs orders to the Local Court for redetermination.' 'Whether leave to appeal should otherwise be granted.']

Ratio Decidendi

Leave was not warranted except in relation to that part of Barr AJ's order remitting the matter to the Local Court. There was no basis to interfere with the discretionary admission of the surveyor's affidavit evidence, and that evidence supported the conclusion that after realignment the access road ceased to encroach on the applicant's land. However, after setting aside the convictions, fines and costs orders from the first and second infringement notices, Barr AJ should not have remitted the matter to the Local Court for redetermination.

Court Disposition

Time extended; Attorney General granted leave to be heard as amicus; leave to appeal granted only as to the remitter order; Council later consented and the appeal was allowed in part by consent, with the remitter set aside and the appeal otherwise dismissed with no order as to costs.

Orders

  • ['Extend the time within which to apply for leave to appeal pursuant to UCPR r 51.10(2).' 'Grant leave to the Attorney General to be heard as amicus on the basis that he will neither seek nor bear costs.' 'Grant leave to appeal from so much of order three made by Barr AJ on 28 June 2013 as states: "and remit the...