Beverly Viavattene v Senior Constable Greg Davison

[2012] HCASL 192

BEVERLY VIAVATTENE

v

SENIOR CONSTABLE GREG DAVISON & ANOR

[2012] HCASL 192
S239/2012

1. This matter concerns a long-running dispute between neighbours about whether an easement exists through the applicant's property enabling her neighbours, Mr Morton and Ms Birch, to access their property.  On 15 June 2011, the applicant was made the subject of a final apprehended violence order in favour of Mr Morton ("the AVO").  She was later charged with contravening the AVO on the basis that she harassed Mr Morton by parking her vehicle so as to block the only road access to his property.

2. Stafford LCM heard that charge on 29 March 2012 in the Local Court of New South Wales.  The applicant did not attend the hearing.  Her solicitor sought an adjournment on the footing that "parental responsibilities" prevented the applicant attending but as no further details were provided, Stafford LCM refused the adjournment.  The applicant's solicitor then withdrew and after an ex parte hearing, the applicant was convicted and fined $1100 plus court costs.

3. On 9 August 2012, the Supreme Court of New South Wales (Harrison AsJ) affirmed Stafford LCM's decision and refused the applicant leave to appeal from it.  The applicant argued there was no easement over her land.  She sought a declaration to that effect and also claimed that she could not breach the AVO merely by parking on her own property.  Harrison AsJ held that the existence of an easement was not relevant to her conviction.  By parking in the manner she did, she contravened the AVO's prohibition on her harassing Mr Morton.  Harrison AsJ held that a declaration could not be made concerning property rights in proceedings in which the applicant's neighbours had neither been joined nor given an opportunity to be heard on the issue.  As to the applicant's claim she was denied procedural fairness by Stafford LCM's refusal to adjourn the hearing at first instance, the applicant's failure to provide details of the "parental responsibilities" founding the application for adjournment meant that the exercise of the Magistrate's discretion to refuse it had not miscarried.

4. The applicant seeks special leave to appeal to this Court.  The application is premature because leave ought to have been sought in the Court of Criminal Appeal.  Moreover, even if the applicant adduced evidence to show there was no easement, it would not preclude a finding that the AVO was contravened.  An appeal to this Court would enjoy no prospects of success.

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