Attorney-General in and for the State of New South Wales v Klewer

PARTIES : Attorney General in and for the State of New South Wales (Respondent) Lucy Patricia Klewer (Applicant)

COUNSEL : K G Oliver (Respondent) In person (Applicant)

SOLICITORS : I V Knight, Crown Solicitor (Respondent)

• 6 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

06/262000 Attorney-General in and for the State of New South Wales v Lucy Klewer (No. 4)

JUDGMENT 1 HER HONOUR: An application has been brought by Ms Lucy Klewer for a stay of the decision of Harrison J given 5 February 2010 in these proceedings pending an appeal to the Court of Appeal from that decision. Where such an application is brought in this Court rather than in the Court of Appeal, it should ordinarily be made to the judge who heard the underlying proceedings. However, since Harrison J was on leave when the motion was returnable on 12 April 2010, I considered it appropriate to hear the application when it came before me as duty judge. Neither party opposed that course. 2 Ms Klewer sought to attend the hearing by telephone. Mr Oliver, who appeared for the Attorney-General, informed me that Harrison J had adopted a practice of permitting that to occur during the hearing of the underlying proceedings. Accordingly, the hearing before me proceeded by that process. 3 The decision in respect of which the stay is sought consists of orders under s 84(1) (now repealed) of the Supreme Court Act 1970 restraining Ms Klewer from instituting or continuing any legal proceedings in any court without the leave of the Court. The orders were based on his Honour's finding (in the terms of that section) that Ms Klewer habitually and persistently and without any reasonable excuse has instituted vexatious legal proceedings: see Attorney-General in and for the State of New South Wales v Klewer (No. 3) [2010] NSWSC 9 at [339]. 4 Ms Klewer has not yet commenced an appeal. She attempted to file a Notice of Intention to Appeal in the Registry but it was returned on the basis that it had not been filed within 28 days of the judgment and on the further basis that the applicable fee had not been proffered or sought to be waived. 5 The present application entails a conceptual difficulty which raises an interesting question. The orders made by Harrison J are apt, in terms, to preclude the institution of any proceedings without leave. The orders are: "Until further order:

1. Order that the defendant shall not, without the leave of the Court, institute any legal proceedings in any court.

2. Order that any legal proceedings instituted by the defendant before the making of order (1) shall not be continued without the leave of the Court."

6 Mr Oliver submitted, in effect, that order 1 operates so as to restrain the institution of an appeal against the orders themselves (without leave). According to Mr Oliver's researches, that question does not appear previously to have arisen for this Court's determination. 7 It has been accepted that an order under s 84(1) extends to the institution of an appeal. In Hunter's Hill Municipal Council v Pedler (1976) 1 NSWLR 478, Yeldham J said (in a passage set out in the decision of Harrison J at [274]): "Section 84 of the Supreme Court Act 1970 is clearly directed to the removal of abuses of the processes of the Court and of hardship to persons against whom vexatious proceedings are taken. While it is probably correct to say that interlocutory proceedings taken in the course of an action instituted by another person which is still current are not within the section, I think, without endeavouring to supply an exhaustive definition, that, where a final decision has been given, any attempt, whether by way of appeal or application to set it aside, or to set aside proceedings taken to enforce such decision, which is in substance an attempt to re-litigate what has already been decided, is the institution of legal proceedings. It is to the substance of the matter that regard must be had and not to its form." 8 However, it does not appear that Yeldham J was there referring to the institution of an appeal of the kind now foreshadowed. 9 Mr Oliver relied on the unqualified terms of the orders. He noted that it would have been open to Harrison J, if his Honour had seen fit, to exclude an appeal from his own decision from the operation of the orders made. However, he very fairly pointed out that his Honour was not invited to do so, and that Ms Klewer was not legally represented at the hearing. 10 It might be thought to be counter-intuitive that a court order constraining the institution of legal proceedings should extend to an appeal from the very order imposing the constraint. In theory, the underlying decision is no less likely to have entailed error than any other kind of decision. As a matter of principle, a person against whom such an order has been made should, in my view, have the same right as any party in like circumstances. 11 In that respect Mr Oliver submitted that an appeal from the orders of Harrison J requires leave in any event under s 101 of the Supreme Court Act, either because it is an interlocutory judgment or because it involves a matter at issue amounting to less than $100,000. However, that is a separate issue. 12 I accept that order 1 does appear to extend, in terms, so as to restrain the institution of an appeal against the orders themselves without leave under s 84(4) of the Supreme Court Act. The test under that section is whether the Court is satisfied that the proceedings are not an abuse of process and that there is a prima facie ground for the proceedings. 13 To further complicate the present issue, such an application is ordinarily assigned to a single judge in the Common Law Division, although it could presumably be determined by the Court of Appeal together with the other leave requirements if that were deemed appropriate. In any event, the conceptual difficulty that arises in respect of the present application is that the prospects of obtaining leave under s 84(4) are relevant to the issue whether there should be a stay. However the stay, if granted, would have the effect of removing that very requirement. The application may accordingly be seen to entail something of a paradox. It is difficult to know whether that is a consideration that militates for or against the grant of a stay. 14 I have concluded, however, that it is not necessary to resolve that interesting question in the present case. Whether or not leave is required under s 84(4) to institute an appeal from the decision of Harrison J (or assuming, without deciding, that Ms Klewer has reasonable prospects of obtaining such leave), I am not inclined to grant a stay in the present case. 15 In the first instance, the grounds of appeal articulated by Ms Klewer during argument before me are not without difficulty. Ms Klewer's principal contention is that Harrison J deprived her of procedural fairness in respect of a notice of motion filed by her after his Honour had concluded the hearing of the principal proceedings but before the close of written submissions. 16 The notice of motion, sent to his Honour's chambers on 25 November 2009, sought orders that the principal proceedings be permanently stayed and dismissed or alternatively that the summons be dismissed but that Ms Klewer give an undertaking to the Court to notify the plaintiff in the event that she commenced fresh proceedings in any New South Wales Court or Tribunal. The basis for the application appears to have been that Ms Klewer was unable properly to defend the proceedings due to her own ill health and her commitments to the care of her son. 17 The hearing of the proceedings had concluded on 20 May 2009, apparently subject to the provision of written submissions. The final judgment of Harrison J records that, both before and after the hearing, Ms Klewer had made several similar applications for a stay or summary dismissal of the proceedings. His Honour formed the view that the application filed on 25 November 2009 was misconceived and that any further delay in the final disposition of the case was unwarranted: at [10]. His Honour determined not to allocate any time to hear the motion but to deal with it in his reasons in the principal proceedings. 18 Mr Oliver noted that the material relied upon by Ms Klewer in the application before me to demonstrate the alleged denial of procedural fairness had already been considered by Harrison J in the context of an application for an adjournment made during the hearing of the proceedings in May 2009. In determining that application, Harrison J concluded that all of the medical opinion spoke "with one voice" in saying that Ms Klewer was capable of attending the hearing: Attorney-General in and for the State of New South Wales v Klewer (No. 2) [2009] NSWSC 454 at [64].

19 In that context, so far as is disclosed by the limited material put before me on the stay application, the contention that Harrison J was obliged, after reserving his decision, to afford Ms Klewer the opportunity to be heard again on the same issues is not immediately compelling. 20 In any event, even assuming Ms Klewer has reasonable grounds for appeal, discretionary considerations militate against the grant of a stay in the present case. First, as submitted by Mr Oliver, proceedings in respect of vexatious litigation are brought by the Attorney-General in the public interest. The decision is presumed to be correct until it is determined otherwise and, accordingly, must be taken to serve the public interest. On that basis alone, a stay ought not lightly be granted. 21 Secondly, in practical terms, the only burden of the orders of Harrison J is in respect of two proceedings already on foot (apart from the discrete issue of the application of the orders to an appeal, considered above). Ms Klewer confirmed that she is not otherwise contemplating instituting any specific fresh proceedings. That being so, as submitted by Mr Oliver, Ms Klewer's interests are adequately protected by the fact that it is open to her to make an application for leave under s 84(4) to continue the two identified existing proceedings. 22 For those reasons, I am not satisfied that it is appropriate to grant a stay. The application should be dismissed. **********

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