Attorney General in and for the State of New South Wales v Klewer [2010] NSWSC 9 | Case summary

Attorney General in and for the State of New South Wales v Klewer [2010] NSWSC 9 | Case summary | Zoe

I am completely satisfied that there was nothing whatsoever inappropriate about the way in which the two officers acted when they arrested [Ms Klewer]. I consider the way in which she resisted was totally unjustified and I am satisfied the two officers used as little force as possible to remove this woman from her home. They were conscious of the fact that there were young children present and it seems to me that they carried out their task efficiently and coolly and if anyone was angry and if there was any shouting, I am satisfied that it was [Ms Klewer] who was the person who was guilty of behaving in that way and not the officers. She sought to provoke them when she cross-examined them in the witness box and each of them maintained his cool." Proceedings 52/0172 of 2002 113 This was an appeal by Ms Klewer, in relation to an AVO granted against her by the Local Court on the application of Senior Constable Trevor Walter. Ms Klewer's application for an AVO against "the NSW Police Service Coffs Harbour", in which Senior Constable Walter had been particularly named, was dismissed on 27 November 2001. On 24 September 2002 Judge Urquhart dismissed Ms Klewer's appeal against Senior Constable Walter's successful AVO application and the Local Court order was confirmed. Proceedings 8622 and 8623 of 2002 114 These two actions were heard together. In action 8622 Ms Klewer sued the State of New South Wales claiming damages as a consequence of events that occurred between 9 and 14 June 1995. The cause of action was based on trespass to Ms Klewer's person and property. She also alleged false imprisonment and wrongful arrest. Alternatively she claimed that the defendant was negligent in inflicting nervous shock upon her. As a consequence she claimed compensatory, aggravated and exemplary damages. 115 In action 8623, five of Ms Klewer's seven children, then aged 20, 18, 16, 14 and 11, sued the State of New South Wales, two officers of the Department of Community Services and one police officer, alleging that the State through those agents and servants, between 9 and 16 June 1995 assaulted them, committed trespass to the land on which they were housed and falsely imprisoned them. As a consequence they too claimed compensatory, aggravated and exemplary damages. 116 The proceedings passed through several courts and files. Proceedings 8622 of 2003 had their origin in Local Court proceedings 444 of 1998, which Ms Klewer commenced by ordinary statement of claim filed in the Local Court at Coffs Harbour on 9 June 1998. The defendant was the State of New South Wales, and Ms Klewer claimed damages based upon loss of civil liberty and nervous shock said to have arisen out of actions by officers of the Department of Community Services in seizing her five children on 9 June 1995. In an affidavit sworn on 26 June 2001 by Sophia Mackenzie, a solicitor then employed in the office of the Crown Solicitor, in support of a notice of motion to strike out the proceedings or stay them pending security for costs, she asserted that the ordinary statement of claim in proceedings 444 of 1998 was incompetent because it was not served in compliance with Part 5 of the Local Courts (Civil Claims) Rules 1988. She also asserted that no reasonable cause of action was disclosed on the pleadings. 117 On 10 April 2001 Ms Klewer filed a notice a motion in the District Court at Coffs Harbour seeking orders that the matter be transferred to that court. The motion was heard by Judge Rolfe on 17 May 2001 and dismissed with costs. On 14 June 2001 Ms Klewer filed a holding summons for leave to appeal to the Court of Appeal against the decision of Judge Rolfe. Subsequently, on 6 August 2001, Ms Klewer filed a further proceeding in the Court of Appeal by way of summons for judicial review of Judge Rolfe's decision. In the interim, the State's motion to strike out or stay the proceedings was filed on 27 June 2001, and Ms Klewer's motion for orders extending time for service of the statement of claim was filed on 11 July 2001. 118 On 8 August 2001 Ms Klewer's children commenced proceedings 111 of 2001 in the Port Macquarie District Court, which ultimately became proceedings 8623 of 2002. Ms Klewer's daughter Susan was the first plaintiff and her other children Laura, Lisa, Robert and Ryan were second plaintiffs through Ms Klewer as their next friend. The defendants were respectively the State of New South Wales, Barbara Beadle, Anthony Hall and Graham Forbes. In these proceedings the children each claimed $750,000 damages (compensatory, aggravated and exemplary) for assault, battery and false imprisonment. The claim was said to have arisen out of actions by officers of the Department of Community Services in seizing the children on 9 June 1995. 119 On 28 August 2001 Ms Klewer's Local Court proceedings were transferred to the Downing Centre as proceedings 10650 of 2001. Ms Klewer's motion for extension of time for service of the statement of claim in those proceedings was granted on 4 October 2001. In the interim, on 21 September 2001, the Court of Appeal proceedings initiated by the holding summons had been deemed to be discontinued and the file closed. Ms Klewer was not in attendance when the proceedings initiated by summons were called over on 24 September 2001. On 8 October 2001, Ms Klewer discontinued these proceedings also. 120 By motion dated 12 October 2001 Ms Klewer sought leave to remove each of Local Court proceedings 10650 of 2001 and the children's proceedings 111 of 2001 to the Coffs Harbour District Court. The motion in respect of the children's proceedings was unopposed and Judge Coolahan granted the motion in respect of the Local Court proceedings on 27 June 2002. Local Court proceedings 10650 of 2001 thus became District Court proceedings 71 of 2002. 121 In these proceedings Ms Klewer alleged that on or about 12 and 14 June 1995 while attempting to visit her children she was subjected to intentional physical force and intentional intimidatory behaviour by the defendant while being arrested and held in custody. Ms Klewer further alleged that the defendant "intentionally or negligently inflicted nervous shock" upon her, "intentionally and without lawful excuse trespassed" on her land, and "falsely and wrongfully" arrested her. 122 On 18 November 2002 Ms Klewer filed notice of motion seeking transfer of the proceedings to Port Macquarie or Sydney. In her affidavit setting out the grounds for this application, Ms Klewer alleged that Judge Rolfe, who was apparently anticipated to preside at the pending Coffs Harbour civil sittings, had exhibited bias towards her in District Court proceedings number 96 of 2001. In those proceedings, Ms Klewer had unsuccessfully sought damages for alleged assaults upon her by two Coffs Harbour police officers allegedly occasioning personal injuries. Judge Rolfe had dismissed those proceedings with costs on 7 November 2002. 123 The proceedings were ultimately transferred to the Sydney Registry and listed for a five-day hearing commencing on 7 October 2003. Acting Judge Murray who delivered judgment on 12 December 2003 heard them. In each action his Honour gave verdicts and judgments for the defendants with costs. In the judgment his Honour referred to Ms Klewer's "long history of litigation". His Honour found at [77] - [78] of the judgment that: "[77] When [Ms Klewer] was cross-examined concerning the items of history of her relationship with the Department on critical issues which reflected badly on her, she invariably prevaricated, denied or obfuscated the material put to her. I found her generally an entirely unsatisfactory and unreliable witness. She was reluctant to admit any proposition which reflected badly on her or was to her forensic disadvantage.

[20] In my view, the last paragraph of his Worship's reasons raised no apprehension of bias on his part. He had already made it clear that his handling of the proceedings in which Mrs Klewer had been involved did not, in his view, raise any reasonable apprehension of bias. In this circumstance, his Worship's remarks did not suggest that, in his view, there was any reasonable apprehension of bias. His Worship simply referred to what he regarded as "good policy". His Worship was incorrect in that view for it is not good policy and certainly not appropriate that a judicial officer should disqualify himself just because one of the parties before him has lodged a complaint with the Independent Commission Against Corruption. A judicial officer should disqualify himself only if there are facts which raise a reasonable apprehension of bias on his or her part. Nevertheless, the reference to "good policy" did not suggest that Magistrate Rheinberger would fail to be impartial and unprejudiced in his handling of Mrs Klewer's case. Indeed, the reference to what he regarded as good policy showed that the Magistrate kept in the forefront of his mind the need to be and to be seen to be without bias." 160 The Court of Appeal overturned the order made by Levine J that Magistrate Rheinberger not hear the Department of Social Security prosecution, and ordered that Ms Klewer's particular application be dismissed with costs. Ms Klewer's motion to stay the orders of the Court of Appeal was dismissed with costs. Pending the determination of the Attorney General's appeal, Dowd J made consent orders on 16 June 2003, pursuant to Ms Klewer's notice of motion filed 29 May 2003, including an order that: "The Magistrates of New South Wales are not to list for hearing any pending matters at Coffs Harbour Local Court involving the plaintiff until further order." 161 On 30 October 2003, the Attorney General moved for orders dismissing Ms Klewer's summons in its entirety pursuant to Pt 13 r 5(1)(a) and/or (c) of the Supreme Court Rules 1970. This motion was initially listed for hearing before Master Malpass, as his Honour then was, on 4 February 2004. He noted that the relief sought in the Attorney General's motion included an order vacating the interlocutory orders of Dowd J, and accordingly adjourned it for hearing by a judge. In the course of his reasons, Master Malpass observed the following: "The matter raised by the first order sought by the plaintiff in the Summons has now been finally disposed of by the Court of Appeal. Any challenge to the decision of the Court of Appeal has to be made elsewhere. The plaintiff has not pursued any such challenge and apparently does not intend to do so.

Any other order the Court deems fit." 164 Master Harrison heard the matter on 2 July 2002. The proceedings before the Magistrate are referred to earlier in these reasons. They were Ms Klewer's private prosecutions of Mr Walton for assault and making false representations in breach of s 314 and s 547B of the Crimes Act. After a contested hearing the Magistrate dismissed the informations and ordered Ms Klewer to pay Mr Walton's professional costs of $10,540 within 14 days. In respect of the false representations allegation, Magistrate O'Keefe had concluded that the evidence was not sufficient to establish a case to answer. With respect to the assault charge he had concluded: "Mrs Klewer, really has a very weak case, it seems to me. And bearing in mind the denial on oath by Mr Walton and Mr Walsh that any physical act had occurred, this complaint must fail, that she has failed to prove the matter beyond a reasonable doubt, which is what she must do, and, therefore, THE CHARGE IS DISMISSED ." 165 Master Harrison said the critical question was whether a prior written statement made by a police officer should have been admitted as evidence and whether that officer should have been treated as an unfavourable witness. Ms Klewer submitted that had the statement been admitted into evidence, it would have proved she had been assaulted and that that evidence would form the basis upon which the two other charges would have been proved. Her Honour concluded: "[34] While the plaintiff did submit that Sergeant Levey should be regarded as an unfavourable witness she did at the earliest opportunity say that he was a reluctant witness and later referred to Sergeant Levey as being a hostile witness. The Magistrate ruled that she could not cross-examine him. In other words, the Magistrate did not grant leave pursuant to s 38. By that time Sergeant Levey had provided an explanation as to why there was an inconsistency between the words 'physically removed' contained in the statement and the word 'ejected' given in evidence. His explanation was that the conversation occurred nine months previously and he could not recall the exact words but he did not recall the words 'touch her' or 'use any force on her' being used. The decision to give leave pursuant to s 38(1) is a discretionary one. Even if on the evidence of Sergeant Levey it may be considered that he made a prior inconsistent statement it was open to the Magistrate in the exercise of his discretion to conclude that Sergeant Levey was not an unfavourable witness. The Magistrate was not obliged to grant leave pursuant to s 38(1). There has been no error of law.

[25] It can thus be remarked that the situation is 'curious' however, as I have indicated, I am of the view that the 'hearing of proceedings' referred to in paragraph 4(a) of Schedule D Part 3 includes an appeal under Pt 5 of the Justices Act and thus is only amenable to an appeal by leave to the Court of Appeal under SCR Pt 60 r 17(a) even in circumstances where it is determined by a Master on reference from a Judge of the Division." 167 In addition, subsequently on 4 December 2002, Ms Klewer filed in the Court of Appeal a holding summons for leave to appeal against the Master's decision, together with a motion for extension of time to file the holding summons. On 3 February 2003 Registrar Schell dismissed that motion with costs stating that: "It seems to me that despite the claimant's contentions to the contrary, that it would amount to an abuse of process to allow her to seek leave to appeal in the circumstances outlined. On the basis of the Judgment of the Master it seems to me that any appeal would be futile and doomed to failure. For those reasons and in order to protect the parties, and I say both parties, from the incurring of any additional, unnecessary costs, my discretion must be exercised so as to prevent the filing of a document which would not ultimately benefit the claimant who seeks the relief sought." 168 On 26 May 2003 Santow JA set aside the orders of Registrar Schell and extended time for the filing of a summons for leave to appeal. The application for leave to appeal was, however, ultimately dismissed with costs in an ex tempore judgment delivered on 14 October 2003. In delivering the reasons of the Court, Hodgson JA stated that: "…in my opinion, the appeal has no prospect of success." Proceedings 11477 of 2003 169 By summons filed on 16 June 2003 Ms Klewer sought the following orders against the Coffs Harbour City Council: "(i) an order that [the Council] be restrained from disposing of two Labrador dogs pending the outcome of proceedings in the Local Court;

(iii) an order that the defendant pay the plaintiff's costs of the proceedings." 170 By notice of motion filed on the same day Ms Klewer claimed orders in essentially the same terms as those contained in the summons. The background to these proceedings is set out in the judgment of Simpson J delivered on 21 July 2003. As at 4 February 2003 Ms Klewer was the owner of two labradors named Jesse and Leo. They were ordinarily kennelled at her home at Coachman's Close, Korora. On 4 February 2003 the dogs escaped from Ms Klewer's yard. They were observed at a local resort in Coffs Harbour where they were pursued around a golf course and a public lagoon area, where they were eventually captured. Neither dog was carrying any identification of its owner or any indication of an address at which it was ordinarily kennelled. By the time the dogs were captured it was after 4.00pm and the council's offices were apparently closed. An employee of the resort (Alison Dykes) took the dogs to her home in Korora for the night, and, by leaving a telephone message, advised the council. The following day a council ranger, Mr Murdock, attended at Ms Dykes' home and took possession of the dogs. He tested them for the microchip information he might have expected under the requirements of the Companion Animals Act 1998 but the result in each case was negative. He therefore delivered them to the RSPCA. Thereafter there was extensive correspondence, particularly from the plaintiff to the council concerning the return of the dogs, but as at the date of hearing, they remained in council custody. 171 On 11 April 2003 Ms Klewer filed an application in the Administrative Decisions Tribunal of New South Wales seeking review of the decision of the council. The application was dismissed by ADT judicial member Higgins, who held that the ADT had no jurisdiction to hear the application. This was because Ms Higgins held that the dogs had been seized under the powers conferred by the Act and that such decisions were not among those subject to ADT review. 172 On 5 March 2003, in the Local Court in Coffs Harbour, the plaintiff laid an information alleging that, in failing to return the dogs to her, Mr Murdock had contravened s 62 of the Act. By information laid and summons filed on 29 April 2003, Gordon Polkinghorne, senior ranger of the council, charged the plaintiff with two counts of unlawful ownership of unregistered dogs, in contravention of s 90 of the Act, and two counts of ownership of dogs that did not have collars and name tags around their necks, in contravention of s 12 of the Act. The substantive orders that Ms Klewer sought in the Supreme Court proceedings were orders for preservation of the dogs pending the outcome of her s 62 prosecution of Mr Murdock, and immediate release of the dogs to her. 173 Simpson J heard the matter on 21 July 2003. Her Honour was satisfied that the dogs were seized at the resort under the authority of the Act by resort employees. What Mr Murdock had done was to take delivery of the dogs in broad compliance with s 62 of the Act. Her Honour held: "In my opinion, the evidence in this court establishes that there is no reasonable prospect that the plaintiff can make out a case against Mr Murdock for contravention of s 62. This is for two independent reasons: firstly he was not the person who seized the dogs under the authority of the Act, and was therefore not bound by s 62(1) to deliver them to their owner; secondly, neither at the time of seizure nor at the time Mr Murdock took custody of the dogs (nor within a reasonable time thereafter) was it possible to identify their owner. Section 62 required delivery of the dogs to the Council pound. Once that was done, the provisions of s 63 overtook the provisions of s 62. In reaching the conclusion that the plaintiff has no reasonable prospect of making a case against Mr Murdock under s 63, I apply the test of whether she has established that there is a serious question to be tried. In concluding that she has not, I do not intend to pre-empt the findings of the Local Court: the evidence there may be quite different. My conclusions are confined to the evidence adduced before me." 174 Shortly afterwards Ms Klewer was granted an interlocutory injunction from the Court of Appeal. Her application for leave to appeal was, however, ultimately dismissed. Proceedings 12804 of 2004 175 On 27 August 2004 Ms Klewer filed a summons naming as the first of three respondents Magistrate Fleming and seeking the following primary relief: "The first Respondent be prevented from dealing with the sentencing hearing listed before Her on 15 November 2004 and any other matter.

That the matter be heard di novo [sic] before an alternate magistrate." 176 The decision of 20 August 2004 in respect of which relief was sought was Ms Klewer's conviction on five criminal charges arising out of an incident on a public walkway at Opal Cove Resort at Coffs Harbour in the course of which it was alleged Ms Klewer had brandished a knife in the presence of her neighbours, Mr and Mrs Gintowt. The proceeding was ultimately heard and determined by Adams J on the basis that it was an appeal on a question of law alone pursuant to s 52(1) and/or an application for leave to appeal on a question of fact or fact/law pursuant to s 53(1) of the Crimes (Appeal and Review) Act 2001. Insofar as the proceeding was an application for leave to appeal on a question of fact or mixed law and fact, Adams J concluded that: "[10] It is obvious ... that it was open to the learned magistrate to conclude that the plaintiff's own accounts of the arrest provided significant support for - indeed, was capable of establishing - the plaintiff's guilt of the charges. Moreover, the learned magistrate was entitled to rely on the evidence of the police officers which in a number of respects was supported by the evidence and the admissions of the plaintiff, although her account plainly contradicted significant parts of the officers' testimony. Weighing up the differing accounts was entirely within the proper exercise by the learned magistrate of her fact-finding function and I can discern no error in her Honour's reasoning." 177 Of Ms Klewer's evidence, his Honour observed that: "[29] The evidence of the plaintiff - perhaps not surprisingly - was marked by continuous argumentative advocacy of her case and what she believed was Mr Gintowt's gross irresponsibility so far as controlling his dog was concerned. It seems to me that the plaintiff's evidence also showed she had a distinct tendency to exaggerate." 178 Adams J concluded that: "[40] So far as leave is sought to appeal as to any question of fact or question of mixed fact and law, the plaintiff should be refused leave, there being no merit in her complaints in these regards. So far as the plaintiff's contentions involve pure errors of law, they are also without merit. It follows that the appeal must be dismissed with costs." Proceedings 10788 of 2005 179 By summons filed on 7 March 2005 Ms Klewer named Coffs Harbour City Council as a defendant and sought the following orders: "1. The decision of Stoddart LCM at Coffs Harbour Local Court on 4 March 2005 (that is three days before hand) whereby his Honour dismissed [her] application where she sought that an order [to pay two civil debts by instalments at the rate of $580 per month] made by the Court on 24 February 2005 remains.

Costs." 184 Ms Klewer filed a 13 page handwritten affidavit in support of her application. On 7 June 2005 the defendant council filed a notice of motion for orders striking out Ms Klewer's summons to the extent that it sought revocation of orders setting aside certain subpoenas that had been served by her. An affidavit in support of that motion indicates that the subpoenas to which the relevant orders related had been issued by Ms Klewer in a prosecution of her by the council for alleged breaches of the Companion Animals Act. The council's motion was later dismissed by consent with no order as to costs on the basis of a notation by the Court that the relief sought in the summons was to relate only to particular civil proceedings, not including those in respect of which the council's motion had sought relief. 185 Subsequently, on 22 June 2005, Ms Klewer filed a notice of motion seeking an extension of time for leave to amend her summons: "…to include appeal against the decision of the 2nd respondent, Lyons LCM at Local Court Coffs Harbour of on [sic] 19 April 2005 where He proceeded to set aside a 2nd subpoena in a criminal matter commenced by Coffs Harbour City Council, 1st respondent." 186 A draft amended summons that was faxed to the court together with this notice of motion included as additional grounds of Ms Klewer's application: "That His Honour failed to find that it was fair and just that the subpoena for the production of the relevant Council file was essential for the plaintiff to defend the Council's claim against her." 187 Thereafter, these proceedings appear to have progressed in tandem with proceedings 10788 of 2005. On 22 August 2006 Ms Klewer discontinued the proceedings. 188 There is no record of the motion that was filed on 22 June 2005 having been heard and determined before the proceedings were discontinued. The court file includes a copy of correspondence from the council's solicitors, apparently faxed to the court by Ms Klewer bearing her handwritten annotations, advising that the council will not consent to the motion being heard prior to the hearing of her two summonses. 189 This motion was in substance an attempt to re-agitate an interlocutory dispute that had previously been determined by the court on terms to which Ms Klewer had consented. Proceedings instituted in the Court of Appeal Proceedings 40534 of 1996 190 This was an application to the Court of Appeal for orders setting aside orders of Judge Johnston on 15 March 1996. The background is set out in the judgment of the Court of Appeal. Ms Klewer was involved in an altercation with police officer Andrew Martin on 18 March 1994. She sued Mr Martin in the Local Court and that matter was heard on 22 June 1995. She failed in that case and costs of $4,500 were awarded against her. She then appealed to the District Court on the question of costs. She lost that appeal and incurred further costs of $500. In her affidavit in support of her application to the Court of Appeal Ms Klewer stated: "9. His Honour permitted the defence to question me about matters which were irrelevant. My legal representative objected. His Honour overruled the objection and stated. 'Please let Mr Stidwell (an agent for the Crown, representing officer Martin) continue. Let us see if Mrs Klewer is a vexatious litigant.'

Any other order the Court deems fit." 194 The orders appealed from were orders refusing leave to appeal out of time against a costs order that had been made in Ms Klewer's absence. The basis of the refusal of leave was Ms Klewer's failure to explain to Judge Ducker's satisfaction the delay in filing notice of appeal. In her affidavit in support Ms Klewer stated: "I was somewhat preoccupied at the time of the hearing of the 17 March before Judge Ducker. I had to remind myself at the time about details of the issues before the Court that day. The reason why I was pre-occupied is because at the time (and even currently) I have been involved in a long ugly battle in the Family court against my former husband … On the 17 March 98 due to the stress I am under I failed to locate 3 documents which were in a folder before me, such documents prove that I had indeed tried to appeal within time against the decision of Ms Barkhell of June 97." 195 On 12 February 1999 Ms Klewer discontinued the proceedings. Proceedings 40429 of 2001 196 These proceedings, which were commenced on 14 June 2001, were a holding summons for leave to appeal. Ms Klewer sought leave to appeal from a decision of Judge Rolfe on 17 May 2001 dismissing Ms Klewer's motion to transfer from the Coffs Harbour Local Court to the Coffs Harbour District Court the proceedings that ultimately became No 8622 of 2002. It appears that on two occasions at least, namely 5 July 2001 and 17 September 2001, the listing of the proceedings was vacated. On 17 September 2001 the proceedings were deemed discontinued, and the file closed. Proceedings 40597 of 2001 197 This was a second proceeding filed by Ms Klewer with a view to overturning Judge Rolfe's interlocutory decision dismissing her motion to transfer her action against the State of New South Wales from the Coffs Harbour Local Court to the Coffs Harbour District Court. The summons is framed as an application for judicial review and seeks orders that: "1. The decision of His Honour, Judge Rolfe, DCJ of the 17 may 01 in the District Court at Coffs Harbour be declared void.

If you fail to attend the call over the summons will be dismissed." 199 On 8 October 2001 Ms Klewer discontinued the proceedings. It appears that she never served the respondent with any summons as she wrote to the Court of Appeal on 8 October 2001 stating: "I hereby seek to discontinue the above proceedings following a related matter in the Downing Centre Local Court on the 4/10/01 involving the same parties. The State of NSW has not been served with the above Summons matter, therefore I do not require their consent to discontinue." Proceedings 41127 of 2002 200 On 4 December 2002 Ms Klewer filed a holding summons seeking leave to appeal against the decision of Master Harrison of 6 September 2002 dismissing her application for orders to set aside the decision of Magistrate O'Keefe to dismiss her criminal prosecutions of Mr Walton, the principal of her son's school. On the same day she filed a notice of motion seeking an extension of time to file the holding summons. The motion was listed for hearing on 3 February 2003 before Registrar Schell. Ms Klewer in effect sought an adjournment of the hearing of the motion but the hearing of the motion proceeded. The Registrar dismissed the motion with costs. The Registrar held: "It seems to me that despite [Ms Klewer's] contentions to the contrary, that it would amount to an abuse of process to allow her to seek leave to appeal in the circumstances outlined. On the basis of the judgment of the Master it seems to me that any appeal would be futile and doomed to failure. For those reasons and in order to protect the parties, and I say both parties, from the incurring of any additional, unnecessary costs, my discretion must be exercised so as to prevent the filing of a document which would not ultimately benefit the claimant sho seeks the relief sought." 201 Ms Klewer successfully had the Registrar's decisions set aside by the Court of Appeal. In a judgment of 26 May 2003 (revised 2 June 2003) Santow JA concluded: "[15] Master Harrison affirmed the magistrate's decision and thereby upheld the magistrate's decision declining to grant leave pursuant to s 38 of the Evidence Act. That decision of Master Harrison is in an area where she was reviewing a discretionary determination by the magistrate. But it is importantly a discretionary determination wherein there is nothing in his reasons to indicate that he had taken into account the matters in s 192 of the Evidence Act.

Murray DCJ erred in his assessment of damage that would have been payable to the Appellant had she been successful." 225 The application was refused with costs on 16 May 2005. The transcript discloses that counsel for the respondent was not called upon to address the Court. Ms Klewer's application for special leave to appeal was subsequently dismissed by the High Court. Proceedings 40081 of 2004 226 This was another application for leave to appeal against the decision of Judge Murray of 12 December 2003, filed by Ms Klewer's children, in respect of which Ms Klewer was the tutor for the purposes of the proceedings. The application was listed for hearing together with Ms Klewer's application for leave to appeal against the decision in her own District Court proceeding. In response to questions from the Bench, Ms Klewer disclosed that several of the putative plaintiffs were over the age of 18 years and, on that basis, the Court proceeded initially to hear Ms Klewer's application only. The transcript also discloses that counsel for the respondent was not called upon to address the Court. 227 Giles and Bryson JJA dismissed the application with costs on 16 May 2005. A subsequent application for special leave to appeal to the High Court was ultimately deemed abandoned. Proceedings 40052 of 2006 228 On 1 February 2006 Ms Klewer filed a holding summons for leave to appeal against the decision of Adams J dismissing her appeal and application for leave to appeal against certain criminal convictions. It appears that the file in these proceedings subsequently remained inactive. On 5 April 2006 the Principal Registrar notified Ms Klewer that her application of 28 March 2006 for waiver of filing fees had been refused on grounds including that the summary of argument was not compliant with the relevant rules of court and might invite an application for strikeout pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005. On 1 June 2006 the Registry notified Ms Klewer that her application for waiver of fees had again been considered and refused. Other proceedings Proceedings 70063 of 1997 229 This was an application by Ms Klewer pursuant to s 474D of the Crimes Act for an inquiry into a total of seven convictions in Coffs Harbour Local Court on 9 August 1996 and Grafton Local Court on 4 December 1996, against the later of which she had unsuccessfully appealed to the District Court. Sully J refused the application. He described the application as "confused and confusing" and caused Ms Klewer to be sent a letter seeking further and better particulars of her application. His Honour held that the basic principle of law by which he was to be guided in considering the application was well settled. He should order an inquiry if the material put before him caused him "unease" in allowing any of the convictions to stand. His Honour held that he felt no "unease" about allowing any conviction to stand and accordingly refused each application for review. Proceedings 70091 of 1997 230 This was an application by Ms Klewer pursuant to s 474D of the Crimes Act for an inquiry into the decision of Magistrate Doring on 20 October 1995 and the subsequent appeal heard by Judge Nield on 21 July 1997 and the decision of Magistrate Linden on 11 October 1996 and the subsequent appeal heard by Judge Garling on 23 May 1997. 231 Newman J refused the application. He found the material to be "inadequate" and caused Ms Klewer to be sent a letter seeking further and better particulars of her application. His Honour also held that he felt no "unease" about allowing any conviction to stand and accordingly refused each application for review. Proceedings 101 of 2004 232 This was an application by Ms Klewer in the Federal Court of Australia for the review of a decision of the Federal Department of Health and Aging refusing to reimburse her costs for medical treatment that her son Robert received in New York in 1993 and 1994. It followed an application to the AAT for review of the same decision, which had been dismissed for want of jurisdiction. On 19 February 2004 the respondent filed a notice of objection to competency of the application on the grounds that: "…the decision referred to in the application was not a decision to which the Administrative Decisions (Judicial Review)Act 1997 applied;

"[15] This matter has a long and complex history in which the latest stage is that Ms Klewer intends to appeal a decision of the New South Wales Court of Appeal in respect of a challenge by her to the obligation to pay the debt claimed. This is a challenge in respect of which she has been unsuccessful to date. In order to pursue an appeal she will first have to obtain special leave from the High Court. Furthermore, there is in force no stay of the relevant judgment order. I am satisfied on the material before me that there is a judgment debt in force, execution of which has not been stayed. Accordingly, the application to set aside the Bankruptcy Notice should be dismissed with costs, as the applicant has not made out any of the submissions on which she seeks to rely." Proceedings 696 of 2004 236 On 23 April 2004 Ms Klewer filed an appeal against Tamberlin J's decision. The Full Court of the Federal Court dismissed the appeal with costs on 5 November 2004. The substantive ground argued by Ms Klewer on the appeal was not a ground she had argued before the primary Judge. The Full Court also noted that: "[14]… The onus lies on the appellant to establish the factual basis for her claim that execution has been impliedly stayed and she has adduced no evidence that the relevant certificate had not been filed with the Registrar. No point can fairly be taken about the lack of evidence on the part of the respondent on this factual issue as it was raised for the first time on the appeal. We would add that the two certificates of the Clerk of the Local Court Coffs Harbour, who became the Registrar of that Court under the amending Act, suggest that it is likely that the relevant information was duly recorded and filed in the Local Court before the Bankruptcy Notice was issued." 237 Accordingly the Court concluded: "[16] For the above reasons, we have concluded that the appellant has failed to establish that the costs order had been impliedly stayed when the Bankruptcy Notice was issued or that at that date the respondent had not taken all the steps that entitled him to reap the fruits of the costs order. As the above ground was the only substantive ground raised on the appeal it must follow that the appeal is to be dismissed with costs." Proceedings 2483 of 2004 238 On 9 August 2004 Mr Walton applied to the Federal Magistrates Court for a sequestration order under s 43 of the Bankruptcy Act 1966 (Cth) against the estate of Ms Klewer. On 7 December 2004 Ms Klewer filed a notice of intention to oppose the application, stating the following grounds: "1 The amended creditor's petition misstates the date of the act of bankruptcy.

[17] Ms Klewer has been engaged in other proceedings against the state of New South Wales which have apparently been resolved and against the Coffs Harbour City Council which appear not to have been finally resolved." 240 On 20 September 2005 Federal Magistrate Driver made a sequestration order against Ms Klewer's estate. At [25] of his judgment he noted the following: "[25] While I am sympathetic to the circumstances of Ms Klewer, as the mother of a disabled child and six other children, that circumstance would not of itself persuade me to refrain from making a sequestration order. Ms Klewer has been a persistently unsuccessful litigant in numerous proceedings and has suffered many adverse costs orders. It was her choice to engage in that litigation. She is an intelligent woman undertaking legal studies and knew the risks." 241 As to the issue of solvency his Honour said: "The remaining and most significant issue to be decided is whether Ms Klewer is solvent. I accept that she is a recalcitrant debtor. I believe that she has no intention of paying the costs order supporting the bankruptcy notice and the creditor's petition." 242 His Honour concluded that Ms Klewer had failed to demonstrate her solvency and that there was no other reason why a sequestration order should not be made. As Ms Klewer had committed an act of bankruptcy her creditors should have the benefit of an orderly administration of her financial affairs. 243 On 5 October 2005 Ms Klewer sought a stay of the sequestration order made by Federal Magistrate Driver. When the matter was first listed for hearing on 4 October 2005 Ms Klewer indicated that she sought pro bono assistance. Her application to be referred for pro bono assistance was refused. She then indicated that she wished to have the opportunity to consult with a lawyer who had provided her with some assistance. The matter was consequently adjourned for hearing on 5 October 2005. 244 The application for a stay was dismissed. Federal Magistrate Barnes held: "[12] The applicant raised a number of issues in her written submissions which she stated were grounds for appeal. In an appropriate case, depending on all of the circumstances, the court has the power to grant a stay for a short period to allow an unrepresented applicant to formulate and file grounds of appeal in circumstances where property is not in jeopardy and the bankrupt has nonetheless filed a statement of affairs as required by section 54 of the Bankruptcy Act, even if the court is not persuaded that there is any real prospect of the appeal succeeding: Day, in the matter of Gould v Gould [2000] FCA 1377.

[19] On balance then, having considered all of the material before me, I do not consider that this is an appropriate case in which the Court should exercise its discretion to grant such stay as may be granted pursuant to section 52(3) of the Bankruptcy Act 1966. Accordingly, the application for a stay must be dismissed." Proceedings 1907 of 2005 245 On 10 October 2005 Ms Klewer appealed against the decision of Federal Magistrate Driver of 20 September 2005. On 6 June 2006 Ms Klewer filed a notice of motion for orders that her appeal "be stood over pending the outcome of the intervention of Dr Ivan Fsadni, Malta High Commissioner". On 20 June 2006 the respondent to the appeal filed a notice of motion for dismissal of the appeal for want of prosecution. On 7 July 2006 Ms Klewer filed a notice of discontinuance. Proceedings 70 and 71 of 2001 246 These were applications for special leave to appeal to the High Court from the refusals by each of Sully J and Newman J to grant Ms Klewer inquiries into various convictions pursuant to s 474D of the Crimes Act. The Court noted that each application was made out of time, and considered that each application had insufficient prospects of success to warrant a grant of special leave. Accordingly in each matter the extension of time required was refused. Proceedings 6 of 2004 247 This was an application for special leave to appeal to the High Court from the judgment of the Court of Appeal (Giles and Hodgson JJA) of 21 November 2003. In her summary of argument Ms Klewer stated: "The most important reason why leave should be granted is on the grounds that it is cruel on the part of the respondent to cause further suffering to the two innocent dogs which are not deemed to be dangerous by the respondent." 248 On 10 March 2005 the Court noted that the application was brought out of time, and held that the application for extension of time should be refused because there are no prospects of success in demonstrating on a special leave application that the Court of Appeal erred in its treatment of the matter. Proceedings 96 of 2004 249 This was an application for special leave to appeal to the High Court from the judgment of the Court of Appeal of 23 February 2004. The application was deemed abandoned on 22 September 2004. Proceedings 24 of 2005 250 This was an application for special leave to appeal to the High Court from the judgment of the Full Court of the Federal Court of 5 November 2004. The Full Court of the High Court heard the application on 5 August 2005. The Court concluded the decisions of the Federal Court and the Full Federal Court were not attended with doubt, and that the appeal had no prospects of success. Proceedings 25 of 2005 251 This was an application for special leave to appeal to the High Court from the judgment of the Court of Appeal (Meagher and Hodgson JJA) of 14 October 2004. The Full Court of the High Court heard the application on 5 August 2005. Again, the Court concluded that the appeal had no prospects of success. Proceedings 284 of 2005 252 This was an application for special leave to appeal to the High Court from the judgment of the Court of Appeal of 16 May 2005. On 9 March 2006, Hayne and Crennan JJ dismissed the application. The court observed that there was "no reason to doubt the correctness of the conclusions of the courts below". Proceedings 285 of 2005 253 This was an application for special leave to appeal to the High Court from the judgment of the Court of Appeal of 16 May 2005 in respect of the proceedings commenced by Ms Klewer as tutor on behalf of her children. The application was deemed abandoned on 22 September 2004. Proceedings 648 of 1999 254 This was the application brought in the Consumer Claims Tribunal by Ms Klewer against Ray Benson Motors. On 11 October 1999 the claim was dismissed by Member Gilson, who observed as follows: "It should be noted that after about one hour of hearings, and after the evidence had been given by the parties, [Ms Klewer] abruptly left the hearing room…

I am therefore not satisfied there is a substantial injustice within the terms of section 63(1) of the Fair Trading Tribunal Act and dismiss the application." 257 Ms Klewer subsequently appealed unsuccessfully to the Supreme Court from the decision of Member Gilson. On 10 July 2000 Ms Klewer sought a further rehearing from the Tribunal. The Tribunal wrote to Ms Klewer on 16 July 2000 advising her that if the Chairperson of the Tribunal or his delegate has refused an application for rehearing under s 621, the Chairperson does not have the power to consider another application for rehearing by the same party. Proceedings 04441 of 2002 258 This was an application brought by Ms Klewer on 14 February 2002 against her tenants Michael Carter and Casey Carter in the Residential Tribunal. She sought the following order/s: "Vacant possession immediately as the landlord is suffering great hardship and needs to move in the property herself, together with her 4 children as they have no money to continue to live at Korora where the outstanding mortgage payment are risking mortgage foreclosure by the Commonwealth Bank. Current savings account is running on $368 overdraft." 259 On 18 February 2002, or four days after the filing of proceedings 04441 of 2002, the Residential Tribunal made orders in proceedings 02917 of 2002 including that the relevant tenancy agreement be terminated and that the tenants deliver vacant possession on 24 February 2002. On 8 April 2002 the application in proceedings 04441 of 2002 was withdrawn pursuant to s 28(5)(h) of the Consumer, Trader and Tenancy Tribunal Act 2001, which requires the Tribunal to allow an applicant to withdraw proceedings on request. Proceedings 10608 of 2002 260 This was an application brought by Ms Klewer for rehearing of an application that had been brought by her tenants Michael Carter and Casey Carter in the Residential Tribunal. The background to the application was that on 18 February 2002 the Tribunal had made orders in proceedings 02917 of 2002 terminating the tenancy, requiring the tenants to deliver possession by 24 February 2002, and awarding Ms Klewer $828.56 in arrears of rent and occupation fee. On the subsequent application of the tenants (No 08383 of 2002) the Tribunal ordered on 22 March 2002 that the rental bond of $760.00 held by Ms Klewer, plus an additional $5.00, being a sum in lieu of interest that would have accrued had the rental bond been lodged with the Rental Bond Board as required under the relevant legislation, be offset against the sum awarded on 18 February 2002. 261 On 25 March 2003 Ms Klewer sought a rehearing. In her application for rehearing dated 22 March 2003 she stated: "The member was cranky and loud from the minute I set foot in the Court room." 262 On 5 April 2002 a delegate of the Chairperson declined to grant a rehearing and Ms Klewer was notified of this decision by letter dated 8 April 2002. Proceedings 09569 of 2003 263 The background to this application appears in the judgment. On or about 29 May 2002 Ms Klewer had purchased a motor vehicle from Naijar Ousama, who then traded as Blues Brothers Autos. On 5 August 2002 Ms Klewer lodged claim 32695 of 2002 against Blues Brothers Autos. After a hearing, the Tribunal ordered the respondent to pay Ms Klewer $1,330.75. Ms Klewer subsequently filed this application, seeking a money order for $17,500 being the refund of the purchase price of the motor vehicle. 264 The application was dismissed for lack of jurisdiction. Member Turley stated in his reasons for decision that: "I only recorded the above particulars to show that [Ms Klewer] has misconceived the basis upon which the earlier matter was resolved…

In addition, the whole of the engine was one of the issues in dispute that were heard and determined by the previous Tribunal. In my opinion, an estoppel arose at the time of that determination which prevents the further litigation of that issue in any forum. For both of these reasons I ruled that I did not have jurisdiction to hear this claim." Proceedings 33039 of 2003 265 This was the application brought in the Administrative Decisions Tribunal by Ms Klewer under s 38 of the Impounding Act 1993 seeking review of the decision of the Coffs Harbour City Council to impound her two labrador dogs. On 23 May 2003 Judicial Member Higgins found that the Tribunal had no jurisdiction to hear Ms Klewer's application. The Tribunal only had jurisdiction to hear matters in respect of which the Companion Animals Act makes specific provision for the Tribunal to review a decision under that Act. The Companion Animals Act has no such provision. Proceedings 1212 of 2002 266 This was an application brought by Ms Klewer in the Administrative Appeals Tribunal in which she sought a review of a decision of a delegate of the Minister for Health and Aging dated 6 August 2001 refusing her claim under a scheme known as the "Financial Assistance to Australian Residents requiring Life Saving Medical Treatment Overseas" ("the Scheme"). 267 On 16 October 2002 Senior Member Sassella found that the Tribunal lacked jurisdiction to review decisions made under the Scheme. The member held: "The Tribunal finds that it lacks jurisdiction to review decisions made under the Scheme. There is no Act of Parliament or any subordinate legislation conferring such jurisdiction on the tribunal. The tribunal would add that it would be very unusual if the position were otherwise given that the scheme is non-statutory. The very absence of a statute relating to the scheme would provide a hurdle in the event that policy was developed to make decisions under the scheme reviewable." Proceedings 1075 of 2000 268 This was the application brought by Ms Klewer in the Administrative Appeals Tribunal in which she sought a review of a decision of the Secretary of the Department of Family and Community Services not to deduct business expenses from her income as a taxi driver, on the grounds that she was not carrying on a business. Save for an amount of $139.25 collected as Goods and Services Tax, Senior Member Muller affirmed the decision under review. Proceedings 6709 of 2001 269 This was the application brought by Ms Klewer in the Fair Trading Tribunal against Hibbard Homes. At a hearing held on 31 August 2001 the Tribunal ordered the respondent Malcoy Pty Ltd trading as Hibbard Homes to pay Ms Klewer $66.00. On 20 September 2001 Ms Klewer sought a rehearing of the matter. The application for rehearing was refused. Proceedings 023295 of 1996 270 This was the application for compensation brought by Ms Klewer in the Victims Compensation Tribunal. She had been scheduled under s 2 of the Mental Health Act 1990 on 8 April 1996 as an involuntary patient. She claimed that she was unlawfully detained during her period in hospital and assaulted when her clothing was removed and she was given intravenous drugs against her will. 271 The Tribunal found that Ms Klewer's detention was not unlawful. It also found that nothing in the conduct of the police was unlawful. Nor was the Tribunal satisfied that an act of violence had occurred, which was a prerequisite for the making of any order for compensation. Accordingly the application was dismissed. However, the Tribunal did allow for the payment of Ms Klewer's solicitors' scale costs. Attorney General's submissions on legal issues 272 Mr K Oliver of counsel, who appeared for the Attorney General, provided me with a series of very comprehensive submissions on pertinent legal issues. These are considered below. The meaning of "vexatious" 273 Section 84(1) of the Supreme Court Act provides as follows: "84(1) Where any person (in this subsection called the vexatious litigant) habitually and persistently and without any reasonable ground institutes vexatious legal proceedings, whether in the Court or in any inferior court, and whether against the same person or against different persons, the Court may, on application by the Attorney General, order that the vexatious litigant shall not, without leave of the Court, institute any legal proceedings in any court and that any legal proceedings instituted by the vexatious litigant in any court before the making of the order shall not be continued by the vexatious litigant without leave of the Court." 274 The relevant principles are set out in Attorney-General v Wentworth (1988) 14 NSWLR 481. The section was considered by Whealy J in Attorney General in and for the State of New South Wales v Bhattacharya, by Hoeben J in Attorney-General (NSW) v Betts [2004] NSWSC 901, by Patten AJ in Attorney General v Bar-Mordecai [2005] NSWSC 142 and by White J in Public Trustee v Gittoes aka Caldar [2005] NSWSC 373. In Bhattacharya Whealy J had this to say at pars [3] - [14]: "[3] This legislation has its historical origin in the Vexatious Actions Act 1896 which was enacted in England (56) and (60) Vict. C 51. The history of the development of similar legislation in Australia is traced in the judgment of the High Court in Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 at 316. The statutory power conferred by legislation of the kind contained in s 84 of the Supreme Court Act 1970 has been held to extend beyond the limits of the inherent power of the Court to restrain vexatious applications in a pending action.

[14] In my opinion, the Court should approach the questions involved in s 84(1) with care and caution. The making of an order under the section effects a significant curtailment of a citizen's rights. Once satisfied that the pre-requisites have been met, however, a court should act firmly and authoritatively to restrain and control new and existing vexatious litigation, to the extent the statutory power enables it to act. There is, of course, undoubtedly a discretion whether to act or not, even where the statutory pre-conditions have been established." 275 Proceedings are vexatious if they are either instituted with the intention of annoying or embarrassing the person against whom they are brought, are brought for collateral purposes, and not the purpose of having the court adjudicate on the issues to which they give rise or, irrespective of the motive of the litigant, are so obviously untenable or manifestly groundless as to be utterly hopeless. The collateral purpose need not refer to the sole purpose, but merely to a purpose for which the proceedings were brought and for which they should not have been commenced: see Donnelly v Capricornia Prospecting Pty Ltd [1999] NSWLEC 39; (1999) 102 LGERA 310 and the cases cited at 322. Litigation is vexatious if it is brought for collateral or ulterior purposes, or if it is not a bona fide attempt to have the questions in dispute adjudicated: Attorney-General for New South Wales v Solomon (1987) 8 NSWLR 667 at 674. 276 To form the basis for an order under s 84(1), the proceedings must be shown to have been instituted "without any reasonable ground" and such proceedings must have been instituted "habitually and persistently". As to the circumstances in which proceedings are commenced "without any reasonable ground", Roden J in Attorney-General v Wentworth at 491E was of the view that proceedings that are said to be so obviously untenable or manifestly groundless as to be utterly hopeless necessarily satisfy this requirement. In Attorney General v Bar-Mordecai, Patten AJ, while less categorical, nonetheless assumed that vexatious proceedings instituted with reasonable ground would constitute a "rare case": [2005] NSWSC 142 at [30]. The proper approach 277 While the Court looks to see whether each allegedly vexatious proceeding is in fact vexatious, an order is justified if the pattern emerges of vexatious proceedings being habitually and persistently instituted. In Attorney-General for New South Wales v Solomon at 673, Young J said the following: "The Court must examine the proceedings under review. It looks to see whether each is vexatious, though it remembers that an order is justified although there may have been reasonable grounds for the proceedings in each case considered by itself if the pattern emerges of vexatious proceedings being habitually and persistently instituted: Re Chaffers (1897) 45 WR 365". 278 In Attorney General for the State of Victoria v Horvath, Senior [2001] VSC 269 at [28] the Court said in relation to the Victorian equivalent to s 84: "It is one thing to know what the word "vexatious" means. It is another thing to apply s 21(2) to the circumstances of a particular case. In the latter task the following matters are, according to the authorities, relevant: first, where an order has been made dismissing an action as frivolous or vexatious, or striking a pleading out, it is not for a court considering a s 21 application to go behind the order and go into the merits of the argument as a court of appeal would do. Second, findings which are required do not depend on viva voce evidence or credibility of witnesses. The critical evidence is to be found in court files - documents, judgments, orders and reasons. For that reason, any hearsay material contained in an affidavit in support of an application, even though objectionable, should be treated simply as a distraction, and ignored. Third, the question is not whether the manner in which a proceeding is conducted is vexatious; it is whether, having regard to its nature and substance, it should be so characterised. Fourth, and this is a more general proposition with respect to s 21, in determining whether the Attorney-General has made out a case, the court is not concerned with a minute individual examination of each proceeding. It must consider the overall impression created by the number of proceedings, their general character and their results" 279 Where a pattern of vexatious proceedings being habitually and persistently instituted is found to have emerged, the Court has a discretion to make an order notwithstanding that proceedings initiated by the defendant during a relevant period may have included some proceedings that cannot be characterised as vexatious: Attorney-General v Wentworth at 494 - 5. The meaning of "any court" in s 84(1) 280 In Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302 the Full Court of the Supreme Court of South Australia held that the Workers Compensation Tribunal of South Australia should be regarded as a "court" for the purposes of s 39 of the South Australian Supreme Court Act. In New South Wales the expression "proceedings in any court" to which an order under s 84 may be applicable corresponds to "proceedings … in the [Supreme] Court or in any inferior court" by reference to the vexatious character of which the jurisdiction to make such an order is enlivened. This does not extend to include proceedings in tribunals or in the courts of other jurisdictions. This view was expressed by Yeldham J in Pedler at 479: "It will be seen that, provided the necessary conditions precedent are found to exist, the section empowers the Court to make orders of two kinds: the first, which, apart from statute, it does not otherwise possess, is the order that the vexatious litigant shall not, without leave of the Court, institute any legal proceedings against the person aggrieved in any court, which expression I take to mean the Supreme Court of New South Wales or any inferior State court" 281 In Attorney-General (NSW) v Betts, Hoeben J said at [3] that the reference to "any inferior court" means any New South Wales inferior court, which "of course excludes tribunals". The meaning of "legal proceedings" 282 The expression "legal proceedings" in s 84 includes criminal proceedings: see Attorney General for New South Wales v Solomon at 672 per Young J and Attorney-General v Van Reesema (1986) 43 SASR 170 per O'Loughlin J. The relevant question to consider 283 The relevant question for the Court to consider is not whether the proceedings have been instituted vexatiously, but whether they are in fact vexatious: Attorney General v Vernazza [1960] 1 QB 197 at 208; Attorney-General v Wentworth at 492. The inquiry is directed to the subject matter of the proceedings, not to the manner in which the proceedings are conducted: Pedler 485. 284 The Court's discretion is enlivened in any case where there has been a "great mass of litigation of a vexatious character, habitually and persistently instituted without any reasonable ground": Re Chaffers; Ex parte Attorney General (1897) 76 LT 351 per Wright J at 352. In such a case, the Court has a discretion to make an order notwithstanding that proceedings initiated by the defendant during a relevant period may have included proceedings that cannot be characterised as vexatious: Attorney-General v Wentworth at 494-5. "Habitually", "persistently" 285 "Habitually" suggests that the institution of such proceedings occurs as a matter of course, or almost automatically, when the appropriate conditions exist; "persistently" suggests determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness: Attorney-General v Wentworth at 492. The courts have been reluctant to formulate a definition of these terms, but the above test has been followed subsequently: Valassis v South Sydney City Council [1996] NSWLEC 232; (1996) 92 LGERA 275 at 280, Ramsey v Skyring [1999] FCA 0907; (1999) 164 ALR 378 at 290, Attorney General in and for the State of New South Wales v Bhattacharya and Attorney-General (NSW) v Betts. Material to be considered 286 Material which may be considered by a court in considering an application under s 84 includes the initiating process in the allegedly vexatious proceedings, judgments, proceedings in other jurisdictions, applications for interlocutory relief brought in proceedings and related judgments and out of court statements. 287 The initiating process is obviously relevant to determining the nature of the proceedings, although it may be necessary to go behind the claim to determine conclusively whether the proceedings are vexatious in nature. Judgments have been referred to in order to establish that the proceedings were obviously groundless: Attorney-General for New South Wales v Solomon, Attorney-General v Wentworth, Valassis v South Sydney City Council and Armidale City Council v Connell [1997] NSWLEC 127. Comments by judges in dismissing litigation are relevant but not conclusive: Attorney-General for New South Wales v Solomon at 672. The result of proceedings in appellate courts can be relevant to whether the proceedings appealed from were vexatious: Re Cameron [1996] QCA 37; [1996] 2 Qd R 218, Ramsey v Skyring and Valassis v South Sydney City Council. 288 Judgments in proceedings in other courts on similar subject matter may assist in establishing the habitual and persistent nature of the litigant's pursuit of proceedings: Re Cameron; Valassis v South Sydney City Council. Findings of fact in such judgments may also assist in establishing whether a factual basis existed for bringing the allegedly vexatious proceedings: Attorney-General v Wentworth. Proceedings in tribunals and other jurisdictions 289 As noted above, the received view is that the proceedings by reference to the vexatious character of which the Court's jurisdiction to make an order under s 84 is enlivened, and hence the only proceedings the vexatious character of which is placed directly in issue on an application under s 84, are proceedings in the Supreme Court or inferior courts of New South Wales. In determining whether particular proceedings instituted in one or more of those courts were or are in fact vexatious, it may nonetheless be appropriate to take account of proceedings in courts and tribunals other than the Supreme Court and inferior courts of New South Wales where those proceedings have authoritatively resolved the particular issue against the person instituting the proceedings. In Re Cameron, Mackenzie J stated at 224: "To make a declaration that a person is a vexatious litigant it is necessary that the court be satisfied that the person has instituted vexatious legal proceedings and has done so frequently and without reasonable grounds. … However one of [the plaintiff's counsel's] submissions was that proceedings in courts other than Queensland courts could be regarded as 'legal proceedings' for the purpose of determining whether a person had frequently and without reasonable grounds instituted legal proceedings. It was conceded that a consequence of this argument was that the Supreme Court might make a declaration, for example, in a case where a person had instituted numerous proceedings in the Federal Court or the courts of other States without reasonable grounds and it was apprehended that he was likely to commence actions in Queensland. I do not accept this proposition. The jurisdiction given by the Vexatious Litigants Act is a protective jurisdiction and it is the frequency of the proceedings brought without reasonable grounds in Queensland courts which enlivens it. However once the elements of frequency and lack of reasonable grounds are established it is legitimate, in a case where it is necessary, to have regard to the fact that groundless proceedings have been brought in other jurisdictions and what their outcome was to aid in establishing that proceedings brought in Queensland are vexatious." 290 In Ramsey v Skyring, Sackville J stated at 389-90: "The terms of FCR O 21, r 1 can be satisfied, however, only by proceedings instituted in this court. Even so, in determining whether particular proceedings instituted in this court are in fact 'vexatious', it may be appropriate to take account of proceedings in other courts where, for example, they have authoritatively resolved the particular issue against the person instituting the proceedings: cf O'Shea v Cameron, at 6, per Mackenzie J, with whom Pincus JA agreed." 291 The relevance of proceedings in other jurisdictions for such a purpose is consistent with what may well be a wider general principle, that proceedings in courts and tribunals other than the Supreme Court and inferior courts of New South Wales may be "relevant for the light which they throw upon" proceedings in those courts: Public Trustee v Gittoes aka Caldar at [3]. As the Court has a discretion whether or not to make an order once the essential conditions precedent have been established, proceedings in other jurisdictions may also be considered in determining whether the discretion should be exercised in a particular case: Re Cameron at 222. Applications for interlocutory relief 292 Applications for interlocutory injunctions, and judgments on those applications, have been considered to assist in determining whether proceedings have been brought on "reasonable grounds": Donnelly v Capricornia Prospecting Pty Ltd. Regard can be had to the evidence given in proceedings to form opinions on the issue of whether or not allegations made in proceedings had any basis. This may be most appropriately done by reference to findings of fact in judgments, whether in the allegedly vexatious proceedings or other proceedings: Attorney-General v Wentworth. 293 However, affidavits filed in support of the substantive proceedings and the transcript of argument might disclose the basis of the proceedings in a way that may not otherwise appear on the face of the proceedings, and may assist in drawing the conclusion that the proceedings are vexatious in nature: Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303 at 308. Whilst interlocutory documents (such as notices of motion) and affidavits in support of applications were referred to in Attorney-General v Wentworth, Roden J cautioned that a thorough analysis of the specific complaints and allegations the subject of the litigation should be undertaken before concluding that there was an element of vexatiousness. Out of Court statements 294 Statements made out of court threatening litigation, or discussing litigation, have been admitted to demonstrate persistence: Donnelly v Capricornia Prospecting Pty Ltd, and such statements have also been admitted to demonstrate a collateral purpose for which litigation may have been brought. Additional background 295 Section 84(1) was modelled on s 51 of the Supreme Court of Judicature (Consolidation) Act 1925 (UK). In Attorney General v Vernazza, a submission that, for the purposes of s 51 of the UK Act, the "vexatious" character of legal proceedings was to be assessed wholly subjectively by reference to "whether the [defendant] was acting maliciously or otherwise than in good faith" was rejected by the English Court of Appeal. Ormerod LJ remarked (at 208) that "the question is not whether [proceedings] have been instituted vexatiously but whether the legal proceedings are in fact vexatious". 296 In Attorney-General v Wentworth, Roden J noted the decision in Attorney General v Vernazza alongside a consistent line of authority for the proposition that, in the context of both inherent and statutory powers to restrain abuse of process, the test for the "vexatious" character of legal proceedings was capable of being satisfied according to a "purely objective test". On the basis of those authorities, he concluded that "the requirement of vexation for the purposes of s 84(1) [is] capable of being satisfied even in the absence of malice or improper motive on the part of the litigant": at 490A. 297 Where the vexatiousness of proceedings can be established according to this "purely objective test", the motive of the defendant in bringing the proceedings need not be proved. This is exemplified by Valassis v South Sydney City Council where the respondent to a successful application under s 70(2) of the Land and Environment Court Act 1979 was found to be seeking in substance to re-litigate against a local council a claim that the Court of Appeal had held to be untenable in a decision from which special leave to appeal to the High Court had been refused. Although an inference might reasonably have been drawn from all of the evidence that the repeat proceedings were part of a sustained campaign of harassing conduct, the ultimate objective of which was to induce the council to amend or retreat from its zoning policy, Stein J noted that the council did not allege any such collateral purpose, but relied solely upon the fact that the proceedings satisfied the test for objective vexatiousness. 298 As to what must be shown to satisfy that test, Roden J quoted passages from both English and Australian decisions on the power of courts to restrain abuse of process by means of striking out or summary dismissal and stated (at 490G - 491A) the following: "What these cases, and the line of authorities of which they form part, make clear, is that where an objective test is applied to determine whether the court should exercise its power to prevent litigation from running its normal course - either by striking out or summary dismissal - what amounts to 'utter hopelessness' must be shown. It seems to me that when there is an application for the far more drastic s 84(1) order, which would deny or limit a citizen's right of access to the courts, and that is considered on a purely objective assessment of proceedings instituted by [the defendant], nothing less than that 'utter hopelessness' must be shown." 299 When, in a subsequent passage of the judgment, his Honour formulated the three-limbed test for vexatiousness that appears in the published headnote to the judgment, and which has subsequently been regarded as authoritative, he expressed the "third limb" or objective test to be whether proceedings are "so obviously untenable or manifestly groundless as to be utterly hopeless": at 491D. The Attorney General submitted that on a strictly grammatical reading of this "third limb" of the statutory test for vexatiousness, the proper starting point for its application is not the question simpliciter whether proceedings are "utterly hopeless", but rather whether they may properly be characterised as such on the basis of the degree or extent to which they are "obviously untenable" or "manifestly groundless". The Attorney General contended that the test that Roden J intended to be authoritative should have been so carefully formulated was unsurprising because the descriptions "obviously untenable" and "manifestly groundless" are each (and the phrase "utterly hopeless" is not) to be found in the judgment of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129, to which his Honour specifically referred. 300 The test for "utter hopelessness" was the subject of further consideration by the Western Australian Full Court in Attorney-General v Michael [1999] WASCA 181. The case was an appeal from a decision of Wheeler J in Crown Solicitor for the State of Western Australia v Michael (Supreme Court of Western Australia, Wheeler J, 30 July 1998, unreported). In that case, Wheeler J had declined to make an order under the (now repealed) Vexatious Proceedings Restriction Act 1930 (WA) which, like s 84(1), was consciously and closely modelled on s 51 of the 1925 UK provisions. Her Honour had referred to the views of Roden J in Attorney-General v Wentworth and concluded that: "If actions are not 'utterly hopeless', then the use of misconceived procedures, defects of pleading, placing of irrelevant material before the court, and matters of that kind fall to be dealt with, not under the Act but under the rules of Court." 301 In Attorney-General v Michael the Full Court dismissed the appeal but only on the basis of upholding her Honour's finding that the conduct complained of fell just short of being "habitual and persistent": at [133]. Speaking of Roden J's test of "utter hopelessness", Anderson J, with whom Pidgeon J and Steytler J concurred, remarked at [126]: "With all respect, if this means that, absent male fides in one form or another, proceedings will not be vexatious unless they are "so obviously untenable or manifestly groundless as to be utterly hopeless", I think that test is too narrow as a test of general application under our Act. I think proceedings may be vexatious for the purposes of the Western Australian statute without necessarily being "utterly hopeless", which I take to mean plainly devoid of any merit whatever." 302 Anderson J continued at [126]: "The litigant who sees dark conspiracies and the threat of great harm to himself or herself in the trivial wrongs of another may provide an example. Commencement of an action by such a person, containing outlandish allegations and seeking forms of relief that the courts do not grant, may be vexatious, notwithstanding that it may be possible for the court to identify for the litigant a cause of action for which, arguably, there may be some form of remedy." 303 This passage echoes the observations of Yeldham J in Pedler at 484C that "a close perusal" of a statement of claim filed by defendants (whom his Honour described at 484G as having pursued litigation "with paranoid-like persistence") satisfied him "beyond doubt that the claims made [were] quite untenable and the relief sought [was] such as no court could or would possibly give". 304 Referring to a particular action that had been the subject of the unsuccessful application in Attorney-General v Michael and which exemplified the kind of objectively vexatious proceeding to which he was referring, Anderson J said: "Whilst it is not possible to say that the claim of nuisance in respect of the loud playing of music is 'utterly hopeless', the allegations as to that, and the relief sought in respect of it, are so deeply buried in bizarre allegations and untenable claims for relief that the court ought to be able to say, as a matter of judgment, that it is a vexatious proceeding within the meaning of the section." 305 Single judges in Queensland and Victoria have approved the decision of the Western Australian Full Court in Attorney-General v Michael. It was followed in Lohe v Bird [2004] QSC 23 at [5] by McMurdo J with respect to cognate Queensland legislation. In Attorney-General for the State of Victoria v Weston [2004] VSC 314 Whelan J, though holding that the WA Full Court's "qualification to, or amplification of" Roden J's formulation in Attorney-General v Wentworth was unnecessary to dispose of the case, approved at [15] what had been said in Attorney-General v Michael. His Honour considered at [19] that a complete absence of any evidentiary basis for a proceeding was an example of a finding that would justify the characterisation of a proceeding as objectively vexatious for the purposes of the Victorian equivalent of s 84(1) even though such a proceeding would not and could not have been struck out on such a basis. Consideration 306 The Attorney General relied on the following matters in asking the Court to exercise its discretion to make the orders sought. First, Ms Klewer repeatedly institutes proceedings that are vexatious, hopeless or otherwise an abuse of process. See for instance proceedings numbered 52/0218 of 1994, 41127 of 2002 (motion), 40600 of 2003 (motion), 101 of 2004, 236 of 2004 and 52/10203 of 2005. 307 Secondly, proceedings commenced by Ms Klewer are regularly dismissed for lack of jurisdiction. See for instance 10781 of 2000, 129 of 2001, 12423, 12431, 12432, 12440, 28337 and 28345 of 2002, 09569 of 2003 and 33039 of 2003. 308 Thirdly, Ms Klewer exhibits an inability to accept rational decisions made against her. Her inability or refusal to comprehend the basis on which an adverse decision has been made is exemplified by her pursuit of relief against the Coffs Harbour Council in respect of its detention of her dogs. Her initial application was determined against her on the basis of a finding by Simpson J that the dogs had not in fact been seized by the council's ranger, on which supposition there was no reasonable prospect of establishing any breach of the statutory provision on which Ms Klewer relied. Notwithstanding this finding, Ms Klewer thereafter pursued (in all cases unsuccessfully) an application for leave to appeal, an application for a stay of the decision refusing such leave, a motion to set aside the decision refusing to grant such a stay, two motions seeking to stay various costs orders that had followed upon her previous failed applications, and an application for special leave to appeal to the High Court of Australia. 309 Ms Klewer's litigation against Ray Benson Motors similarly manifests an inability or refusal on her part to accept that the evidence of others has been preferred to her own. Following the Fair Trading Tribunal's dismissal of her application for rehearing of an adverse decision that had been made on this ground, Ms Klewer filed three successive applications - one in the Supreme Court for judicial review and two in the Local Court alleging breaches of the Trade Practices Act 1974 (Cth), all of which were summarily dismissed for want of jurisdiction. 310 Fourthly, Ms Klewer regularly seeks an adjournment or says she can't attend or fails to appear. This occurred in proceedings 52/0218 of 1994, 4 of 1996 (x 2), 591167 of 1997, 52/0316 of 1997, 675 of 2001 (x3), 20543 of 2001, 40597 of 2001, 41127 of 2002, 40205 of 2003, 101 of 2004 and 52/10203 of 2005. 311 Fifthly, Ms Klewer, having invoked the jurisdiction of a court or other tribunal, regularly leaves the court during the conduct of the proceedings. See for instance 52/0218 of 1994, 52/0086 of 1996, 648 of 1999, 96 of 2001 (x2), and 52/10203 of 2005. 312 Sixthly, Ms Klewer regularly makes scandalous allegations of bias or corruption by police and judicial officers during the course of the vexatious proceedings. See for instance 22/0308 of 1991, 52/0319 of 1996, 675 of 2001, 13825 of 2001, 10608 of 2002, 10788 of 2005, and 52/10203 of 2005. 313 Seventhly, Ms Klewer regularly withdraws the complaint or discontinues the proceedings or the proceedings are ultimately deemed abandoned. See for instance 4 of 1996, 40429 of 2001, 40597 of 2001, 17961 of 2002, 12423, 12431, 12432, 12440, 28227 and 28345 of 2002, 04441 of 2002, 40600 of 2003, 96 of 2004, 285 of 2005, and 5116 of 2005. 314 Eighthly, Ms Klewer's credibility is regularly doubted or the court does not believe her. See for instance 22/0308 of 1991, 52/0218 of 1994, 52/0312 of 1995, 52/0319 of 1996, 52/0316 of 1997, 648 of 1999, 96 of 2001, 8622 and 8623 of 2002, 41127 of 2002, and 12804 of 2005. 315 Ninthly, Ms Klewer regularly seeks indulgences (such as the waiver of court filing fees), or the seeking of sympathy based on having seven children and other personal circumstances. See for instance 12844 of 1998, 30098 of 1998, 40267 of 1998, 40534 of 1996, 41127 of 2002, and 40052 of 2006. In this respect Judge Ducker has said: " [Ms Klewer] seems to think the courts should give her some special treatment and allow her to proceed or not proceed according to her whim. . . . I see no reason to be sympathetic to a person who was well aware of the hearing date of a matter, failed to turn up, and then seeks to have this Court assist her, long after the time for an appeal has expired. Ms Klewer well knew that the hearing was on. She gives an attempted explanation, which I do not accept for failing to lodge the appeal on time." 316 This is redolent of comments by Gyles J as follows: "It was, I endeavoured to persuade her, not simply a matter of turning up unrepresented and throwing herself upon the mercy of the Court so the Court would conduct the case for her". 317 The Attorney General also submitted that three characteristics emerged from all of this, which encapsulate Ms Klewer's approach to litigation. The first is her inability to understand the difference between allegations and evidence. She seems to believe that merely making allegations or claims, no matter how extreme or fanciful, in some way constitutes evidence of the matters alleged. Secondly, she habitually refuses to accept the adverse decisions of the court. Thirdly, she has an inability or an unwillingness to understand or comprehend the reasons that have led to the failure of her applications. This has caused her on a regular basis to distort or simply to ignore the findings made against her. 318 It is important immediately to record that Ms Klewer made no submissions on the issue of why the orders sought against her should not be made. That is not to say that Ms Klewer did not contest the making of the orders, as her vigorous and passionate opposition to the Attorney General's claim throughout the proceedings unambiguously reveals. Ms Klewer did not, however, formulate or present reasons why she should succeed in this case in any logical or meaningful or comprehensible way. In particular, Ms Klewer did not offer me at any stage of the proceedings a single reason why I should conclude that any particular proceeding commenced by her, upon which the Attorney General relies, was not vexatious. I should indicate that I would have been greatly assisted by submissions of this type. This is because Ms Klewer quite obviously and somewhat tragically takes a quite different view to the commencement and continuation of proceedings, as a response to the ups and downs of daily life, than most members of the community. Her particular motivations or reasons for the commencement of these manifold actions might arguably have gone a long way to explaining what on one view appears inexplicable, even if in the final analysis the test of what is vexatious is not one to be decided solely by reference to her subjective intentions. I re-emphasise that from my point of view it is extremely regrettable that Ms Klewer did not attend to these submissions in her own best interests with the same determination and apparent single-mindedness that she brought to the commencement of the proceedings in the first place. 319 This is revealed and emphasised when the transcript of her submissions in Coffs Harbour is examined. Ms Klewer concentrated on several matters there apart from the main issues in the proceedings. One of those was her persistent attempt to have me re-visit her earlier unsuccessful application to adjourn the proceedings on medical grounds, which had proceeded before me during the whole of the first week of the hearing: see Attorney General in and for the State of New South Wales v Klewer (No 2) [2009] NSWSC 454. Following my refusal to return to that issue, an exchange occurred between Ms Klewer and me that included the following: " HIS HONOUR : The effect of what I said Mrs Klewer is that I'm not prepared to adjourn the matter further on medical grounds and that--

DEFENDANT : Because I've never come across such an unreasonable person who has got expert proof staring at him at the face and you ignoring it. You sought for me to get supporting medical evidence. You've got it. You're rejecting it. You have got no medical knowledge. Dr Wenman does. You're making a mockery out of his opinion. I'm going to ask you to get off this case, you're not suitable to deal with this case your Honour. You haven't been suitable to deal with this case from day one. You have made deliberate mistakes in the last judgment of, I think in relation to the motion I filed on 31 March. You have conducted yourself in a way that a reasonable person would say that you are being totally unfair, totally unreasonable and that anybody would form the view that that's going to be of mindset if the hearing was to continue you your Honour. You have got no, no - you have shown me in no way that you are a fair minded judge. You have shown me in no way that you are going to be impartial in these proceedings. You have shown me in no way that you listen to what I'm saying, that you listen to my evidence, that you give any weight to the evidence and what you've done today your Honour is just a perfect example how unsuitable you are. Please withdraw from this case your Honour because I'm not going to put my life in the balance just because of your convenience. You've got a very poor attitude your Honour and I find you, I find you extremely difficult and I find you quite impractical and I find you not as a person suitable to be a judge of the Supreme Court. You're not your Honour. I could get a man off the street who could give me a better, better, better judgment than you have your Honour, based on common sense approach. You don't even have the common sense approach. You're willing to put my health at risk because it fits your schedule. Your Honour these - you can't have a situation happening to fit your schedule. You have to prioritise first and people's welfare is of utmost important and if someone standing here today not before, but today you've learned that its potentially fatal condition that can develop during these proceedings due to the stress that I'm under.

And that stress is exacerbated by your attitude, his attitude, the nature of the material before the court and the fact that I could stress myself out to the max and at the end of the day it's not going to make one shred of difference. You probably already got a Judgment printed somewhere in relation to this matter, you've already formed the view that regardless what I say, it's not going to make any difference whatsoever. So your Honour I seek that you withdraw." 320 In the events that have occurred, therefore, there has been no effective contradictor of the Attorney General's submissions. I have come to the conclusion in all of the circumstances, for the reasons that follow, that Ms Klewer has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings within the meaning of those expressions in s 84. It is unnecessary to consider every proceeding commenced by Ms Klewer to arrive at this conclusion. 321 Many of the proceedings commenced by Ms Klewer were disposed of either because she withdrew them or they were dismissed when she failed to attend at the hearing. This result occurred on 12 February 1996 in relation to the proceedings against Ms Brown-Paul for offensive language, on 27 June 1997 in proceedings against Mr Malcolm for an AVO, and on 12 March 2003 and 16 June 2003 in proceedings against Casey Carter and Michael Carter. Ms Klewer also withdrew her complaint against Alison Dykes on 19 April 2005. On 23 October 1998 Ms Klewer discontinued proceedings commenced in this Court against One Tel Pty Ltd and Magistrate Pugsen. Proceedings commenced in this Court against Mr Malcolm and Magistrate Evans were discontinued on 12 February 1999. Ms Klewer also discontinued the proceedings commenced against the Coffs Harbour City Council on 14 August 2006. 322 The Attorney General submitted in relation to these proceedings that the result suggested they were vexatious because they were so obviously untenable or manifestly groundless as to be utterly hopeless. It would have been open to Ms Klewer in these proceedings, if the facts supported her, to lead evidence that these results occurred because of some arguably beneficial compromise, which suggested that she achieved some result in the proceedings. In this way Ms Klewer could have sought to demonstrate that they were not obviously untenable or manifestly groundless so as to be utterly hopeless. Ms Klewer led no such evidence and did not otherwise suggest that she was precluded from doing so by reason of a confidentiality term in any settlement at which the parties may have arrived. 323 The proceedings against Ms Paul-Brown were obviously utterly hopeless. The words relied upon to support a charge of offensive language were nothing of the sort. In the absence of any other evidence to explain the result, the outcome in my opinion reflects recognition by Ms Klewer that the proceedings were utterly hopeless. 324 Ms Klewer's stated reason for seeking an adjournment in the first proceeding against Mr Malcolm was similar to the reason why she was unable to attend Lismore Local Court in the Paul-Brown matter. Her application to adjourn the proceedings was made four days before it was due to be heard. She failed to appear. The dismissal of the proceedings with costs in her absence is otherwise unexplained. The ultimate fate of her re-run of the same case some six months later eloquently informs the fact that it was obviously untenable and manifestly groundless. 325 The second group of proceedings against the Carters was withdrawn after Ms Klewer was advised that her appeal to the District Court was incompetent. The first and third groups of proceedings appear to have been overtaken by events in the CTTT. It is difficult to know what merit any of these proceedings may have had. It is equally difficult to characterise them as obviously untenable or obviously hopeless. There is an unsettling temporal relationship between the commencement of the second group of proceedings and the Carters' successful application to the Residential Tribunal for the return of their rental bond. 326 The complaint against Alison Dykes was withdrawn. It is not apparent what the substance of the complaint was. Ms Dykes was not apparently involved with the events in the shopping centre that formed the basis of the application for an AVO against Andrew Dykes. In the absence of any explanation from any source for the commencement of the proceedings against Alison Dykes, they would appear to have been obviously untenable and manifestly groundless from their inception. 327 Ms Klewer's summons naming as the defendants Magistrate Pugsen and the defendant that she sued in the Local Court in the proceedings over which he presided were patently doomed to fail. The so-called evidence upon which she purported to rely was expressed in terms of dissatisfaction with the result but did not bring forward any basis of legitimate challenge to it. Ms Klewer would appear ultimately to have appreciated that fact when she determined to withdraw the proceedings. These proceedings were also hopeless from their inception. 328 Ms Klewer's proceedings against Coffs Harbour City Council, with respect to Magistrate Stoddart's decision, were discontinued by her. No reason for this appears in the evidence before me. 329 With respect to the balance of the proceedings commenced by Ms Klewer it is apparent, with a few minor exceptions, that she was unsuccessful in all of them. Lack of success cannot by itself be any reliable measure of the issue of whether or not proceedings are vexatious. However, the loss of proceedings may provide some support for a conclusion otherwise arrived at about whether or not, applying the "so obviously untenable or manifestly groundless as to be utterly hopeless" approach to the issue, the particular proceedings are vexatious in fact. This must also necessarily be so having regard to the fact that the relevant inquiry is directed to the subject matter of the proceedings and not to whether they have been instituted vexatiously or to the manner in which they have been conducted. 330 In the judgment of Acting Judge Murray in proceedings 8622 and 8633 of 2002, his Honour remarked, referring to Ms Klewer: "10. The Plaintiff also has had a long history of litigation." 331 The Attorney General made the following submission concerning Ms Klewer's approach to litigation in general, in the light of this remark: "11. A striking feature of that 'long history of litigation' is the number and variety of the disputes that have brought Ms Klewer to law, and the corresponding number and variety of persons who have been made parties to litigation at her suit. The evidence upon which the plaintiff relies in these proceedings does not, it is submitted, present the defendant as someone who has pursued a litigious vendetta against just one or a very few persons in the obsessive pursuit of vindication in respect in respect of a single discrete grievance. It is submitted that what the evidence rather establishes is that the defendant is a person who has come to regard litigation, not as a last resort, but as a routine response to conflict." 332 The Attorney General's submissions continued in the following terms: "12. The earliest proceeding that is relied upon by the plaintiff in these proceedings is a District Court appeal, determined in 1992, that arose from Ms Klewer's prosecution on charges of offensive language, and resisting and assaulting a police officer in the execution of duty. In finding the charges proved, but dismissing the informations pursuant to s 556A of the Crimes Act 1900 , Cullen LCM was moved to remark upon the fact that a '...minor traffic infringement has snowballed to substantial proportions' and that '[t]hese are matters which have of course, as I've said earlier, been blown out of all proportion.'

On 4 February 2003 the defendant's dogs escaped from her control and were later that day impounded by the Coffs Harbour City Council. As a consequence the defendant was prosecuted by the Council for offences against the Companion Animals Act 1988 . The defendant, for her part, commenced proceedings alleging breaches of the same Act on the part of the Council ranger, and thereafter initiated a stream of applications, the objective of which was to secure the release or preservation of the dogs on various pretexts. Such applications were pursued in the Administrative Decisions Tribunal, the Supreme Court, the Court of Appeal and the High Court of Australia - in every instance without success…" 333 It seems to me that these proceedings commenced by Ms Klewer were clearly commenced at least with the intention of annoying or embarrassing the person against whom they were brought. In the same context, proceedings commenced for that purpose fall within the description of proceedings that are brought for a collateral purpose and not for the purpose of having a court adjudicate on the issues to which they give rise. 334 As I have already indicated, I have not been given the benefit of any helpful submissions from Ms Klewer concerning these various proceedings about whether they or any one of them had a legitimate, as opposed to a collateral, purpose. (White J was confronted with a similar approach from the defendant in Gittoes: see [113]). It will be recalled that the Court of Appeal judgment in Ms Klewer's application for leave to appeal against the decision of Judge Rolfe included the comment that Ms Klewer was "unwilling or unable to present her case in an orderly manner to answer even the simplest of questions asked of her by the Court". This was also my experience, as the very many pages of transcript will reveal. Ms Klewer could also have given evidence about whether or not she commenced proceedings for a legitimate forensic purpose but she did not do so. This may have clarified what might otherwise appear to a detached observer to be the commencement of proceedings for no good purpose, in the sense that the inspiration for the proceedings was not the achievement of the relief claimed. 335 The proceedings commenced involving David Malcolm, Ray Benson Motors Pty Limited, Ian Walton, Ms Brown-Paul, the State of New South Wales, acting through its officers of the Department of Community Services, Michael Carter and Casey Carter, Magistrate Rheinberger, the Coffs Harbour City Council, Constable Martin, Sandra Luxford and Mr and Mrs Gintowt, and the appeal following Magistrate Cullen's dismissal of proceedings against her without recording a conviction all in my opinion fall into this latter category. I consider that these proceedings were instituted with the intention of annoying or embarrassing the person against whom they were brought or a person associated or connected with an organisation against which they were brought. I consider that they were therefore also brought for collateral purposes and not for the purpose of having the courts adjudicate on the issues to which they give rise. They were by their very nature vexatious. 336 Moreover, the number and timing of these proceedings also satisfy me that Ms Klewer has both habitually and persistently instituted them. Ms Klewer's demonstrated preferred response to conflict has been to commence proceedings in circumstances where none is warranted. This has included proceedings in the Local Court in several locations at Grafton, Lismore, Ballina, Bellingen, Kempsey and Coffs Harbour, the District Court at some of these locations and in Sydney, this Court and the Court of Appeal. I will put to one side the prosecution of applications for special leave to appeal to the High Court and matters in various tribunals. Indeed, on one view, resort to appropriate administrative tribunals is what Ms Klewer ought to have been doing to resolve minor differences, such as claims concerning rental bonds or disputes with car sales yards, rather than the institution of full-blown litigation. Ms Klewer has habitually and persistently resorted to the technique of seeking AVOs for collateral purposes and has done so with conspicuous lack of success. 337 Ms Klewer has indicated that she is currently locked in a dispute in the Federal Court over issues arising from the sequestration of her estate. The details of that proceeding have never been announced before me in anything but the sparsest detail. It appears to be uncontested, however, that the petitioning creditor was a defendant unsuccessfully sued by Ms Klewer who became entitled to an unsatisfied judgment for costs in the proceedings. For obvious reasons I have taken no account of those proceedings in forming the views I have formed. 338 With one exception, all of Ms Klewer's sixty proceedings and appeals that were not either discontinued or withdrawn by her have been dismissed. In most cases Ms Klewer has been ordered to pay the successful party's costs. This demonstrates a significant determination and resolve on her part to continue in the face of difficulty or opposition with a degree of stubbornness. 339 In all of these circumstances I find that Ms Klewer habitually and persistently and without any reasonable cause has instituted vexatious legal proceedings. Conclusion 340 In Gittoes at [115], White J drew attention to the following important consideration: "[115] As the grounds for making an order under subs 84(2) are established, it is necessary to consider whether it is appropriate in the exercise of the court's discretion under that section, to make the orders sought. The making of an order under s 84(2) and the consequent restraint upon what is otherwise a person's entitlement to seek redress from a Court as a matter of right, is a serious matter." 341 These comments apply equally to the orders sought by the Attorney General pursuant to s 84(1) of the Act. Subsections 84(3) and (4) are relevant in this respect. They provide as follows: "(3) The Court may from time to time rescind or vary any order made by it under subsection (1) or subsection (2).

(4) Where the Court has made an order under subsection (1) or subsection (2) against any person, the Court shall not give that person leave to institute or continue any proceedings unless the Court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings." 342 These latter provisions provide a mechanism for a person in respect of whom an order pursuant to s 84(1) has been made to approach the Court in an approriate case for leave to institute or continue proceedings for which a prima facie case can be shown. Ms Klewer did not suggest that there were any current of contemplated proceedings currently falling within that class. It does not appear to me that these are provisions with the terms of which Ms Klewer could not readily deal given her familiarity with, and experience of, the Court's process. 343 The Attorney General made the following submission: "There is a high cost to the defendants and an associated cost to the processes of the Court in the imposition on judicial resources of the applications repeatedly brought by Ms Klewer and the form and manner in which they are brought. The plaintiff submits that the institution of so many proceedings by Ms Klewer and, moreover, her conduct of those proceedings, should be a matter of the gravest concern to the Court in the administration of justice." 344 The Attorney General submitted further "that it is in the public interest, and the object of the present application is, that any pending or future litigious enterprises that [Ms Klewer] may intend to pursue in the courts of this State be subject to the supervisory jurisdiction of the Supreme Court." On this contention, as with all others, Ms Klewer made no specific or helpful submission in her own interest. I have not been told that there is any proper reason why the orders sought should not be made and I am not satisfied that there one exists. Ms Klewer's right to seek redress through the courts in a proper case, in the sense that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings, remains unaffected. Orders 345 In these circumstances I make the following orders: Until further order :

Parties

Applicant/Plaintiff:

Attorney General in and for the State of New South Wales

Respondent/Defendant:

Klewer

Legislation Cited (6)

(UK) Trade Practices Act 1974(Cth)

Vexatious Proceedings Restriction Act 1930(WA)

repealed) Vexatious Proceedings Restriction Act 1930(WA)

Trade Practices Act 1974(Cth)

Bankruptcy Act 1966(Cth)

Social Security Act 1991(Cth)

Cases Cited (34)

CITATION : Attorney General in and for the State of New South Wales v Klewer (No 3) [2010] NSWSC 9

Armidale City Council v Connell [1997] NSWLEC 127 Attorney General v Bar-Mordecai [2005] NSWSC 142 Attorney-General v Michael [1999] WASCA 181 Attorney-General v Van Reesema (1986) 43 SASR 170 Attorney General v Vernazza [1960] 1 QB 197 Attorney-General v Wentworth (1988) 14 NSWLR 481 Attorney General for the State of Victoria v Horvath, Senior [2001] VSC 269 Attorney-General for the State of Victoria v Weston [2004] VSC 314 Attorney General for New South Wales v Solomon (1987) 8 NSWLR 667 Attorney General in and for the State of New South Wales v Bhattacharya [2003] NSWSC 1150 Attorney General in and for the State of New South Wales v Klewer (No 2) [2009] NSWSC 454 Attorney General of New South Wales v Klewer [2003] NSWCA 295 CASES CITED : Attorney-General (NSW) v Betts [2004] NSWSC 901 Crown Solicitor for the State of Western Australia v Michael (Supreme Court of Western Australia, Wheeler J, 30 July 1998, unreported) Donnelly v Capricornia Prospecting Pty Ltd [1999] NSWLEC 39; (1999) 102 LGERA 310 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303 Lohe v Bird [2004] QSC 23 Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302 Public Trustee v Gittoes aka Caldar [2005] NSWSC 373 Ramsey v Skyring [1999] FCA 0907; (1999) 164 ALR 378 Re Cameron [1996] QCA 37; [1996] 2 Qd R 218 Re Chaffers; Ex parte Attorney General (1897) 76 LT 351 Valassis v South Sydney City Council [1996] NSWLEC 232; (1996) 92 LGERA 275 Walton v Klewer [2005] FMCA 878

DEFENDANT: All right." 12 It was in these circumstances that I formed the view I should proceed to formulate and finally deliver my reasons for judgment on the substantive issues without further delay beyond 18 December 2009. Proceedings commenced by Ms Klewer relied upon by the Attorney General 13 Ms Klewer instituted twenty-two separate proceedings in the Local Court. Twelve were dismissed, three were withdrawn, six were withdrawn and dismissed and one was stayed. None of these proceedings resulted in a decision in her favour. 14 Ms Klewer instituted seventeen proceedings in the District Court. One only out of seven resulted in the quashing of a criminal conviction. One was withdrawn on the basis of undertakings given without admission. The remaining fifteen were either dismissed or resulted in judgments for the opposing parties. 15 Ms Klewer instituted eleven separate proceedings in the Supreme Court. None resulted in a decision in her favour. Eight were determined adversely to her and three were discontinued. 16 Ms Klewer instituted ten proceedings in the Court of Appeal. None resulted in a decision in her favour. Six were dismissed, three were discontinued or were deemed to have been discontinued, and one appears currently to remain inactive. 17 Accordingly, of the sixty separate proceedings instituted by Ms Klewer, she was partially successful in one, and obtained a compromise in another. In the remaining fifty-eight proceedings relied on by the Attorney General, Ms Klewer was unsuccessful, either because the proceedings were decided against her, dismissed, struck out as incompetent, discontinued, or never served. In most instances the proceedings were dismissed with costs. 18 In addition to these proceedings, Ms Klewer has also filed thirteen notices of motion, which can be considered as coming within the definition of proceedings for the purposes of s 84. In this respect in Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 Yeldham J said the following at 488: "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." 19 Whealy J approved that statement in Attorney General in and for the State of New South Wales v Bhattacharya [2003] NSWSC 1150 at [7]. 20 These are the very many proceedings that have been commenced by Ms Klewer upon which the Attorney General relies in support of his claim for orders against her pursuant to s 84(1). The extensive written submissions filed by the Attorney General refer to these numerous proceedings in minute detail. They draw upon the equally extensive affidavit material filed by him that annexes or exhibits what appears to be every, or almost every, significant and relevant document that has been produced, or describes or refers to every, or almost every, significant and relevant event that has occurred, in the course of these numerous sets of proceedings. 21 Ms Klewer has been in possession of these submissions and the supporting affidavits for some considerable time. They were in her possession well before the hearing in Coffs Harbour in May 2009. She has chosen neither to file evidence to contradict the material tendered by the Attorney General nor has she taken any valid objection to it. It seems to me therefore to be an appropriate course to adopt that I incorporate the Attorney General's submissions and extracted evidentiary material, with appropriate but limited modification, in these reasons in order to facilitate Ms Klewer's understanding of the way that I have approached consideration of the case. Unfortunately that has meant that more, rather than less, detail of the various proceedings under consideration has had to be included in these reasons. That has inevitably and regrettably meant that this judgment is longer than it might ideally have been in different circumstances. For example, a judgment could have been produced more efficiently if Ms Klewer had filed her own evidence and written submissions, or at least responsive oral submissions, which refined or identified the real issues in dispute. 22 The relevant proceedings are hereafter considered in jurisdictional categories. Because there is a degree of overlap between a number of the various sets of proceedings, including appeals to higher courts, some inevitable repetition and duplication arises in what follows. It is also convenient to refer to these proceedings simply by plaint number alone, as the reference to the substance of the matters sufficiently identifies them. Proceedings instituted in the Local Court Proceedings 165 of 1994 23 On 1 June 1994 Ms Klewer laid an information charging Mark Wertz with entering enclosed lands. Ms Klewer prosecuted the charge on 12 July 1994 and in the course of the hearing it transpired that the correct defendant should have been John Wertz, the father of Mark Wertz. Ms Klewer declined to withdraw the three charges and they were subsequently dismissed. Ms Klewer was ordered to pay Mark Wertz's costs. Proceedings 105 of 1995 24 On 22 June 1995 Ms Klewer prosecuted Andrew Martin, a police officer, for assault. Ms Klewer failed to convince Magistrate Doring beyond reasonable doubt that Mr Martin used excessive force in the course of arresting her for traffic offences, and the information was dismissed with costs. Ms Klewer's legal representative submitted that she was in receipt of social security payments and the Magistrate gave Ms Klewer three months to pay those costs. The Magistrate said, in the course of dismissing the proceedings, that: "It is clear from [Ms Klewer's] own evidence that she didn't fully co-operate with the Constable or comply with her obligations under [section] 5 of the Motor Traffic Act. In cross-examination she agreed Martin had asked her for her full name and place of abode and that she refused to give such. . . Obviously even on [Ms Klewer's] own evidence [she was] not complying with the obligation placed upon a driver under [section] 5 of the Motor Traffic Act . . .

[1999] WASCA 181

[2001] VSC 269

[2004] VSC 314

[1992] HCA 39

[2004] QSC 23

[2004] SASC 302

[1999] FCA 0907

[1996] QCA 37

[1996] NSWLEC 232

[2005] FMCA 878

(1986) 43 SASR 170

(1988) 14 NSWLR 481

(1987) 8 NSWLR 667

(1999) 102 LGERA 310

(1964) 112 CLR 125

(1992) 109 ALR 303

(1999) 164 ALR 378

(1996) 92 LGERA 275

(1985) 2 NSWLR 685

(1974) 131 CLR 311

(1976) 1 NSWLR 478

[1964] HCA 69

Cited By (13)

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

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Attorney General of New South Wales v Croker

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

Attorney-General in and for the State of NSW v Klewer

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

Klewer v Director of Public Prosecutions

Klewer v National Disability Insurance Agency

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

At a glance

Court

Decision date

Before

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Judgment (249 paragraphs)

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Legislation Cited (6)

Cases Cited (34)

Cited By (13)