Beverly Georgina Viavattene v Attorney General in and for the State of New South Wales

[2012] HCASL 191

BEVERLY GEORGINA VIAVATTENE

v

ATTORNEY GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES

[2012] HCASL 191
S238/2012

1. By summons filed in the Supreme Court of New South Wales under the Vexatious Proceedings Act 2008 (NSW), the respondent sought a vexatious proceedings order that the applicant be prohibited from instituting proceedings in New South Wales without the leave of the Court, and that proceedings already instituted by her be stayed.

2. The application is based on the manner in which the applicant has instituted proceedings in various New South Wales courts.  Those proceedings generally relate to a long-running dispute between, on the one hand, the applicant and her husband, and on the other, their neighbours, Mr Morton and Ms Birch.  The applicant asserts that there is no easement through her property by which Mr Morton can access his property.  As a result of this dispute, the applicant has instituted proceedings in the Local Court, the Supreme Court and the Consumer, Trader and Tenancy Tribunal.

3. On 4 July 2012, the applicant filed a notice of motion seeking to have the respondent's proceedings struck out.  That application was heard by Harrison AsJ and, on 9 August 2012, the application was dismissed with costs.  Harrison AsJ held that the applicant had failed to satisfy the court that the respondent's case is so untenable that it cannot possibly succeed.  Her Honour held that the respondent has a real case to advance and it is appropriate that the matter proceed to trial.  During the hearing, the applicant relied upon a notice of constitutional matter; however, Harrison AsJ found that no constitutional issues could be discerned from the application.  The matter was stood over for a directions hearing in the Supreme Court.

4. The applicant seeks special leave to appeal to this Court.  The application is premature because leave to appeal ought to have been sought in the Court of Appeal of the Supreme Court of New South Wales.  An appeal to this Court would not, at any rate, enjoy sufficient prospects of success to warrant a grant of special leave.  

5. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application. 

S.M. Kiefel
12 December 2012 S.J. Gageler