Viavattene v Attorney General (NSW) [2015] NSWCA 44

Viavattene v Attorney General (NSW) [2015] NSWCA 44

The appeal was allowed because the primary judge erred in making a blanket prohibition order without differentiating proceedings or properly applying the criteria for vexatious proceedings. The only proper order was to prohibit Mr Viavattene from instituting proceedings inconsistent with the finding that the access track no longer encroaches upon his property, given res judicata and repeated litigation on that issue.

Jurisdiction
Australia
Judgment Date
13 March 2015
Procedural Posture
Appeal / Judgment
Outcome
Appeal allowed; blanket order set aside; narrower prohibitive order imposed; costs order set aside and parties to bear their own costs.
Legal Topics
['vexatious Proceedings' 'construction of Vexatious Proceedings Act 2008 (nsw)' 'orders Prohibiting Institution of Proceedings']
['practice and Procedure'] ['vexatious Proceedings' 'construction of Vexatious Proceedings Act 2008 (nsw)' 'orders Prohibiting Institution of Proceedings']

Case Brief

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ['Whether the orders made by the primary judge under the Vexatious Proceedings Act 2008 (NSW) were properly made' "Proper construction and application of 'frequently instituted or conducted vexatious proceedings' under s 8(1)(a)" "Definition and threshold for 'vexatious proceedings' under s 6" 'Whether procedural fairness was afforded in relation to service']

Ratio Decidendi

The appeal was allowed because the primary judge erred in making a blanket prohibition order without differentiating proceedings or properly applying the criteria for vexatious proceedings. The only proper order was to prohibit Mr Viavattene from instituting proceedings inconsistent with the finding that the access track no longer encroaches upon his property, given res judicata and repeated litigation on that issue.

Court Disposition

Appeal allowed; blanket order set aside; narrower prohibitive order imposed; costs order set aside and parties to bear their own costs.

Orders

  • ['Appeal allowed.' 'Set aside the orders made on 26 March 2014.' 'Order that pursuant to s 8(7)(c) of the Vexatious Proceedings Act 2008 (NSW), Mr Viavattene is prohibited from instituting proceedings in New South Wales which are inconsistent with the finding that, following its realignment in about 11 November...