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

Supreme Court of NSW|2014-11-07|Before: Garling J, Harrison J

Judgment 1On 22 October 2014, Lucy Klewer filed a Summons in which she claims the following relief: "1. An order under s. 14 of the Vexatious Proceedings Act 2008 granting leave to the applicant for the purposes of tutor status for son Robert Klewer in current Supreme Court proceedings numbered 2009/297327." (sic) 2Properly understood, the order sought leave pursuant to the Vexatious Proceedings Act 2008, for Ms Klewer to commence proceedings by way of a Notice of Motion in proceedings 2009/297327, seeking an order that she be appointed as the tutor of the plaintiff in those proceedings, who is her son, Robert. 3In support of that Summons, Ms Klewer filed an affidavit sworn on 14 October 2014, and a document indicating her consent to act as tutor in the proceedings involving her son, Robert. 4In addition to those documents, on 22 October 2014, Ms Klewer filed submissions which related to the Summons and the Application.

Vexatious Litigant 5The applicant, Ms Klewer, is a vexatious litigant. 6On 5 February 2010, Harrison J made the following orders pursuant to s 84(1) of the Supreme Court Act 1970: "1. Order that the defendant shall not, without the leave of the Court, institute any legal proceedings in any Court. 2. Order that any legal proceedings instituted by the defendant before the marking of order (1) shall not be continued without the leave of the Court." 7The reasons delivered by his Honour in support of these orders are to be found in Attorney-General in and for the State of NSW v Klewer (No.3) [2010] NSWSC 9. 8The Vexatious Proceedings Act 2008 ("VP Act"), commenced on 1 December 2008. The effect of cl 3 of Schedule 1 of that Act is that because the proceedings before Harrison J commenced, and were pending prior to the commencement of the VP Act, they were continued and dealt with under the Supreme Court Act. Clause 3(2) of Schedule 1 has the effect that any order made pursuant to s 84(1) of the Supreme Court Act, is on and from the date upon which it is made, taken to be, and to have effect as if it were, a vexatious proceedings order made under the VP Act. 9As a result, the provisions of the VP Act apply to Ms Klewer in the event that she seeks leave to institute any proceedings. This means that any such application must be dealt with in accordance with the legislative scheme set out in the VP Act.

The Legislation 10Section 14 of the VP Act applies where a person, such as Ms Klewer, wishes to institute proceedings. It is in the following relevant terms: "14 Application for leave to institute proceedings (1) This section applies to a person ("the applicant") who is: (a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, ... (2) The applicant may apply to an appropriate authorised court for leave to institute proceedings that the order would otherwise prohibit the person from instituting. (3) The applicant must file an affidavit with the application that: (a) lists all occasions on which the applicant has applied for leave: (i) under this section, or ... (b) lists all other proceedings the applicant has instituted in Australia, including proceedings instituted before the commencement of this section, and (c) discloses all facts material to the application, whether supporting or adverse to the application, that are known to the applicant. (4) The applicant must not serve a copy of the application or affidavit on any person unless: (a) an order is made under section 16 (1) (a), and (b) the copy is served in accordance with the order. (5) An appropriate authorised court may dispose of the application by: (a) dismissing the application under section 15, or (b) granting the application under section 16. (6) Despite any other Act or law, the applicant may not appeal from a decision disposing of the application." 11The provisions of s 15 of the VP Act place obligations on the Court once an application made under s 14 for leave to institute proceedings is received. It is in the following form: "15 Dismissing application for leave (1) An appropriate authorised court must dismiss an application made under section 14 for leave to institute proceedings if it considers: (a) the affidavit required by section 14 (3) does not substantially comply with that subsection, ..." 12Finally, the provisions of s 16 deal with a hearing as to whether or not an application should be granted. The provision of s 16 are in the following form: "16 Granting application for leave (1) Before an appropriate authorised court grants an application made under section 14 for leave to institute proceedings, it must: (a) order that the applicant serve each relevant person with a copy of the application and affidavit and a notice that the person is entitled to appear and be heard on the application, and (b) give the applicant and each relevant person an opportunity to be heard at the hearing of the application. (2) At the hearing of the application, the court may receive as evidence any record of evidence given, or affidavit filed, in any proceedings in any Australian court or tribunal in which the applicant is, or at any time was, involved either as a party or as a person acting in concert with a party. (3) The court may grant leave to institute proceedings subject to the conditions that the court considers appropriate. ..."

Usual Procedure 13The usual procedure of the Court for a person subject to a vexatious proceedings order and who wishes to commence proceedings, is for the applicant to commence proceedings by a summons supported by an affidavit of the kind required by s 14(3) of the VP Act. The summons and affidavit have been filed in this case. 14The next step for the Court is that it needs to consider whether it ought make an order for service of the summons and affidavit of the kind set out in s 16(1) of the VP Act. 15The consideration of this step, namely whether to or not to make an order under s 16(1) of the VP Act, is assisted by any submissions which the applicant wishes to make, and is ordinarily determined in Chambers, on the papers and without any oral hearing. 16If the Court, whilst considering whether to make orders for service under s 16(1) of the VP Act, forms a view that any one or more of the bases set out in s 15(1) of the VP Act exist, then the application for leave to institute proceedings must be dismissed. In that circumstance, because it has declined to make an order under s 16(1) of the VP Act, it is not necessary for the Court to give any other party to the proceedings an opportunity to be heard as to whether or not the leave ought be granted. 17I have in Application by Michael Bar-Mordecai [2012] NSWSC 501, set out, in similar terms to these, my views as to the appropriate procedure. 18This procedure, which has been implemented and followed for some years, gives full effect to the overriding purpose of ensuring the just, quick and cheap resolution of issues in proceedings, as required by s 56 of the Civil Procedure Act 2005.

Submissions of the Applicant 19Consistently with this practice, together with the Summons and affidavit, Ms Klewer filed submissions in writing. It is apparent from those submissions that her son, Robert, is the plaintiff in proceedings number 2009/297327, in the Court, in the Professional Negligence List, in which the defendant is The Sydney Children's Hospital Network. The defendant was formerly called the Royal Alexandria Hospital for Children. The Network is legally responsible for the acts and omissions of the Hospital. 20Mr Robert Klewer claims that in 1992, whilst an in-patient at the Hospital, when he was four years of age, an incident occurred in his post-operative nursing care which caused him brain damage and other neurological sequela including a permanent foot drop to his right foot. 21At the moment, Mr Robert Klewer's brother, Ryan, is his tutor in the professional negligence proceedings. Ryan wishes to terminate his appointment as tutor for personal reasons. The Court in the professional negligence proceedings will need to consider that question. 22The provisions of Pt 7 of the Uniform Civil Procedure Rules 2005 ("UCPR") are relevant. Rule 7.14(1) provides that person under legal incapacity may not commence or carry on proceedings except by a tutor. The role of a tutor is to conduct the litigation on behalf of the person under a disability. Rule 7.15(6) of the UCPR provides: "Anything that these rules authorise or require a party to do in relation to the conduct of proceedings may, if the party is a person under legal incapacity, be done on his or her behalf by his or her tutor." 23An order of the Court is required to enable Ms Klewer to be appointed as a tutor: r 7.15(5) UCPR. Unless the Court otherwise orders, the tutor of a person under legal incapacity may not commence, or carry on, proceedings except by a solicitor: r 7.14(2) UCPR.

Attorney-General of NSW v Klewer (No.3) 24The judgment of Harrison J in which orders, which are now deemed to be vexatious proceedings orders, were made, reveals that prior to those proceedings, Ms Klewer had instituted 60 separate proceedings in the Local Court, the District Court, the Supreme Court and the Court of Appeal. She was partially successful in one, and obtained a compromise in another. In the remaining 58 proceedings she was unsuccessful. His Honour said that this lack of success was because "... the proceedings were decided against her, dismissed, struck out as incompetent, discontinued or never served". His Honour also indicated that in addition to those 60 separate proceedings Ms Klewer had also filed 13 Notices of Motion which fell within the definition of proceedings for the purposes of s 84 of the Supreme Court Act. 25His Honour was persuaded that Ms Klewer had habitually, persistently and without any reasonable cause, instituted vexatious legal proceedings.

Affidavit of Ms Klewer filed 22 October 2014 26This affidavit is the only affidavit filed. As it is in support of an application for leave under the VP Act, it must comply with the provisions of s 14(3) of the VP Act. This means that it must include: (a)a list of all occasions on which the applicant has applied for leave to commence proceedings; (b)a list of all other proceedings that the applicant has instituted in Australia; and (c)disclosure of all facts material to the application, whether supporting or adverse to the application, that are known to the applicant. 27The affidavit states that Ms Klewer was declared a vexatious litigant by Harrison J in 2010. She attacks that judgment on the basis of "poor conduct by his Honour", and noted that Harrison J had proceeded to make findings in her absence. She does not otherwise refer to the contents of the judgment. 28She apparently attempts to address her obligations under s 14 of the VP Act towards to the end of the affidavit in the following terms: "21. I am required to list under the s. 14 of the VT Act all previous applications for Leave as well as a list of all matters I commenced in nsw courts prior to 2008. To memory I applied for Leave under this Act once about 4 years ago in the Court of Appeal in a matter involving the Official Trustee in Bankruptcy. Proceedings which I instituted prior to 2008 include the following: A case against Coffs Harbour City Council, Ian Walton, the Catholic Church, Ray Bensen Motors, State of NSW. 22. - s16 of the VP Act requires that in order to obtain Leave I need to satisfy the Court that Robert's Claim has merit and is not a vexatious claim. The Court ought to hold that Robert's Claims does have merit. Expert witness reports attached do give such merit. Refer to annexure C1 (and C2)." (sic) 29The affidavit otherwise refers in some detail to the nature of the claim brought on behalf of her son Robert, including her role as "an important witness in this case" and her account of the facts, matters and circumstances from which it is alleged that the Court would conclude that Robert had been treated negligently. 30It is clear from a comparison between, at least, the judgment of Harrison J in 2010 and the affidavit filed by Ms Klewer in support of this application, the essential paragraph of which I have set out above at [28], that this affidavit falls considerably short of the minimum statutory requirements falling upon an applicant for leave to institute proceedings. 31Within the terms of s 15(1)(a) of the VP Act, it is beyond argument that the affidavit submitted by Ms Klewer with her application does not "substantially comply" with the provisions of s 14(3) of the VP Act. 32In those circumstances, s 15(1) of the VP Act requires that this Court must dismiss the application made by Ms Klewer under s 14.

Orders 33The orders of the Court are: (1)Summons filed 22 October 2014 is dismissed.

Amendments 10 November 2014 - Renumbering Amended paragraphs: 33 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 November 2014

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