Klewer v Director of Public Prosecutions [2020] NSWCA 69 | Case summary

Court of Appeal (NSW)|2020-04-20|Before: Bell P, Basten JA

the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129 Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63 Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia (2012) 249 CLR 398; [2012] HCA 25 The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc (1994) 181 CLR 404; [1994] HCA 54 Viavattene v Attorney General (NSW) [2015] NSWCA 44 Voicu v The Owners-Strata Plan No 1624 [2020] NSWCA 52 Texts Cited: New South Wales Department of Justice, Report on the Statutory Review of the Vexatious Proceedings Act 2008, (May 2017) Category: Principal judgment Parties: Lucy Patricia Klewer (Applicant/Appellant) Director of Public Prosecutions (NSW) (First Respondent) District Court of New South Wales (Second Respondent) Representation: Counsel: J Emmett (Respondents) J Hyde (Amicus)

Solicitors: Lucy Patricia Klewer (Applicant) (Self-Represented) Crown Solicitor's Office (Respondents) File Number(s): 2019/204934 Publication restriction: N/A Decision under appeal Court or tribunal: District Court of New South Wales Date of Decision: 26 November 2018 9 August 2018 Before: King SC DCJ File Number(s): 2017/00294915

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] On 5 February 2010, Ms Lucy Patricia Klewer (Ms Klewer) was declared a vexatious litigant and subjected to a vexatious proceedings order pursuant to s 84(1) of the Supreme Court Act 1970 (NSW) (subsequently repealed). On 29 October 2018, Ms Klewer was convicted of a stalking offence by the Local Court of New South Wales and was directed to enter into a Community Correction Order for 8 months pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to commence on 29 October 2018. On 2 November 2018, Ms Klewer filed in the District Court of New South Wales a Notice of Appeal against her conviction. On 26 November 2018, Ms Klewer's appeal was dismissed by Judge King SC of the District Court, on the sole basis that she was the subject of a vexatious proceedings order and required leave of the Supreme Court to institute any proceedings, which she had not obtained. Ms Klewer filed a summons in this Court on 2 July 2019, seeking orders that leave be granted pursuant to the Vexatious Proceedings Act 2008 (NSW) to institute proceedings for judicial review in the Court of Appeal and that, if leave were granted, that an extension of time be granted to permit judicial review of the Local Court convictions. The principal issues for the purposes of the proceedings were whether Ms Klewer: 1. required leave to commence the judicial review proceedings in the Court of Appeal; 2. required leave under the Vexatious Proceedings Act to institute an appeal to the District Court against her convictions and sentences in the Local Court; and 3. should have an extension of time within which to commence proceedings in this Court. The Court held: As to issue (1): 1 By Bell P and Simpson AJA: Ms Klewer required leave to commence judicial review proceedings in this Court as such proceedings were not "criminal proceedings" within the meaning of s 8(9) of the Vexatious Proceedings Act, which is a provision which carves out "criminal proceedings that are taken… in connection with or incidental to criminal proceedings" from the prohibitive effects of a vexatious proceedings order: [38]-[44]; [107]-[113]. 2 By Basten JA (dissenting): Ms Klewer did not require leave to commence judicial review proceedings in this Court, as such proceedings invoked the Court's supervisory jurisdiction and sought to determine the scope of a vexatious proceedings order, which necessarily fell outside the scope of the order: [72]-[77]. As to issue (2): 3 The primary judge erred in summarily dismissing Ms Klewer's appeal by reason of the vexatious proceedings order and her failure to obtain leave prior to instituting her appeal to the District Court. By Bell P and Simpson AJA: an appeal to the District Court against a conviction imposed by the Local Court is a "criminal proceeding" for the purposes of s 8(9) of the Vexatious Proceedings Act, as it involves an exercise by the District Court of its criminal jurisdiction: [25]-[26], [35]-[36]; [104], [113]. By Basten JA: the general terms of s 84(1) of the Supreme Court Act (under which the order was originally made) and the ability of this provision to intrude on access to justice for affected individuals meant that a broad reading of this provision was not warranted. The power to make an order prohibiting the institution of proceedings should not apply to criminal proceedings where the charge was originally laid against the offender, and where he or she has a statutory right of appeal to the District Court: [68]-[71]. As to issue (3): 4 Ms Klewer should have an extension of time to file the summons seeking judicial review of the Local Court convictions. The decision of 26 November 2018 should be set aside and the matter remitted to the District Court for determination of the appeal: [45]-[47]; [83], [93]; [112]-[113].

Judgment

BELL P: On 29 October 2018, Ms Lucy Patricia Klewer (Ms Klewer) was convicted of a stalking offence by the Local Court of New South Wales (Local Court) at Coffs Harbour and was directed to enter into a Community Correction Order for 8 months pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to commence on 29 October 2018.
On 2 November 2018, Ms Klewer filed in the District Court of New South Wales (District Court) a Notice of Appeal from her conviction in the Local Court.
On 26 November 2018, Ms Klewer appeared in person before Judge King SC of the District Court, sitting in Coffs Harbour. The transcript of that appearance is set out in full below: "HIS HONOUR: The matter of Lucy Klewer. APPELLANT: I am legally represented, however, Joe Faye, the solicitor -- HIS HONOUR: Sorry, you're Ms Klewer, are you? APPELLANT: Yes your Honour. He can't be here today, he can be here tomorrow. HIS HONOUR: Well as I understand it, you required leave from -- APPELLANT: Supreme Court. HIS HONOUR: Decision of Justice Harrison's that you were not to commence any litigation of any sort until such time as you obtained leave from the Supreme Court. APPELLANT: Can that argument be ventilated tomorrow? HIS HONOUR: Do you have leave of the Supreme Court to bring this action[?]-- APPELLANT: I can show your Honour a grant of legal aid for the District Court and I've got a grant of -- HIS HONOUR: No, it's not a matter of legal aid, it's about whether you have consent to start the action. You have been declared a vexatious litigant, haven't you? APPELLANT: Your Honour, I've got a grant of legal aid for the Supreme Court proceedings if they're required as well. HIS HONOUR: Yes. Did you obtain leave from the Supreme Court to bring this action? APPELLANT: It's in process your Honour. HIS HONOUR: All right, so you don't have it. In that case, I will dismiss your matter completely. APPELLANT: Well that argument could've been raised tomorrow with my lawyer, I've got a grant of aid. HIS HONOUR: No, it is done now. You do not have leave, you could not start the action, therefore, it is dismissed. APPELLANT: Can I say your Honour that the application to the Supreme Court was made on 2 November, however -- HIS HONOUR: Sure but you do not have leave. All right, thank you. APPELLANT: Okay, thank you."
The reference in the above transcript to a decision of Justice Harrison is a reference to a decision of Harrison J, sitting in the Common Law Division of this Court delivered on 5 February 2010: Attorney General in and for the State of New South Wales v Klewer (No 3) [2010] NSWSC 9 (the 2010 proceedings). In that decision, Harrison J made the following orders: "1. Order that the defendant shall not, without the leave of the Court, institute any legal proceedings in any Court. 2. Order that any legal proceedings instituted by the defendant before the making of order (1) shall not be continued without the leave of the Court".
Notwithstanding the passage of the Vexatious Proceedings Act 2008 (NSW), these orders were made pursuant to s 84(1) of the Supreme Court Act 1970 (NSW), as the application for the orders that were ultimately made was commenced in 2006: see Sch 1 cl 3 of the Vexatious Proceedings Act. In 2006, s 84(1) of the Supreme Court Act provided that: "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."
The effect of Sch 1 cl 3(2) of the Vexatious Proceedings Act was that Harrison J's order made in the 2010 proceedings was "taken to be (and to have effect as if it were)" a "vexatious proceedings order" made under the Vexatious Proceedings Act.
It is against this background that a summons filed in this Court by Ms Klewer on 2 July 2019 falls to be considered. The respondents to that summons are the District Court of New South Wales and the Director of Public Prosecutions (NSW). The orders sought in the summons were as follows: "1. Leave be granted to institute these Court of Appeal proceedings pursuant to the Vexatious Proceeding Act 2008 NSW. 2. If [l]eave is granted as per Order 1, the Court to allow for extension of time [if so required] to hold a Judicial Review [p]ursuant to the Supreme Court Act of the Local Court Convictions handed down 09/08/2018 to which District Court of Appeal was not allowed due to failure of the Applicant to first obtain Supreme Court [l]eave as required prior to the District Court appeal action."
Prayer 1 presupposes that leave was required to institute the proceedings in this Court. As shall be seen, that is a matter upon which Basten JA differs from both Simpson AJA and me.
In relation to prayer 2, the summons stated that "[t]he decision to be reviewed was the convictions of the Local Court which was not dealt with by the District Court." The ground identified was as follows: "The Applicant ought not [to] have been found guilty in the Local Court. The evidence by the prosecution was neither credible nor reliable. The criminal standard of proof was not reached. His Honour failed to properly consider all evidence including defendant tendered evidence when [h]e determined the matter."
An affidavit of Ms Klewer dated 28 May 2019 was filed together with and in support of the summons.
For completeness it should be noted that, prior to the filing of the summons in this Court, Ms Klewer unsuccessfully sought leave pursuant to s 14(2) of the Vexatious Proceedings Act to institute proceedings by way of appeal to the District Court from her Local Court conviction. This application was determined by Fagan J of the Common Law Division of this Court on the papers. His Honour refused to grant leave in a decision published on 10 May 2019: Application of Klewer [2019] NSWSC 525. There is no application for leave to appeal from that decision. As will be explained, Ms Klewer's application to Fagan J for leave was unnecessary.

Vexatious proceedings orders and criminal proceedings

Section 8(7) of the Vexatious Proceedings Act provides that: "The Supreme Court may make any one or more of the following vexatious proceedings orders in relation to a person: (a) an order staying all or part of any proceedings in New South Wales already instituted by the person, (b) an order prohibiting the person from instituting proceedings in New South Wales, (c) any other order that the Court considers appropriate in relation to the person."
Prior to amendments made in 2018, which are noted and considered further below at [20]ff, s 4 of the Vexatious Proceedings Act, which contained a definition of "proceedings", did not make clear whether or not "proceedings" extended to criminal proceedings. Section 5(1)(d) of the Vexatious Proceedings Act, however, provided that the word "institute", in relation to proceedings, included "for civil or criminal proceedings or proceedings before a tribunal - the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings."
Sections 14(1) and (2) of the Vexatious Proceedings Act provided (and still provides) that: "(1) This section applies to a person (the applicant) who is: (a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or (b) acting in concert with another person who is subject to an order referred to in paragraph (a). (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."
In Viavattene v Attorney General (NSW) [2015] NSWCA 44 (Viavattene) and Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129 (Potier), this Court raised various questions as to the application of the Vexatious Proceedings Act to criminal proceedings.
Both decisions were conveniently referred to by Payne JA in Mahmoud v Attorney General of New South Wales [2017] NSWCA 12 at [29]-[32], where his Honour said, under the heading "Interlocutory applications in the course of defending criminal proceedings": "[29] Both Potier and Viavattene left unresolved the question of how the conduct of criminal proceedings fell within the scope of the Vexatious Proceedings Act. In Viavattene Basten JA said: [24] As Leeming JA notes at [78], there is a real issue as to whether and how the conduct of criminal proceedings may fall within the scope of the concept of "vexatious proceedings". Although the language of the definition of "proceedings" in s 4 is wide enough to include criminal trials and "complaint", the language might not necessarily be understood or construed to apply to criminal proceedings were it not for the express reference to criminal proceedings in s 5(1)(c) and (d). In par (c) there is a textual justification supporting the limitation of its operation to criminal proceedings brought by the person said to be vexatious, by way of private prosecution. However, a similar limitation is not so readily found in the language of par (d). ... [26] It may be that, in a case such as the present, steps taken by a defendant in the course of criminal proceedings brought against him or her for an alleged offence should not be identified as falling within the term "institute" proceedings for the purpose of an application under the Vexatious Proceedings Act. Again, however, that is a matter which need not be resolved in the present case. [30] On the same topic Leeming JA in Potier said: [78] In those circumstances, it is not necessary to decide how the VP Act operates in relation to criminal matters, and given the Attorney's concession and the absence of full argument, it is inappropriate to do so. The Attorney contended that the Act extended to criminal proceedings, such that the way in which an accused defended a prosecution could amount to "conduct". That submission is supported by the legislative text. However, an alternative reading, which is consistent with s 5(1)(c), is that it applies only to criminal proceedings commenced by the person said to be a vexatious litigant. That would include private prosecutions, but not cases such as the present where a person is repeatedly prosecuted. That construction avoids three results which would not lightly be attributed to the Legislature without clear language. One is that a general order under the VP Act prevents a person from applying for bail without satisfying the requirements of s 14, and introduces the mandatory regime under Part 3 before the bail application can be determined. A second unlikely result is that there is an element of double punishment in an accused being convicted and being made the subject of an order under the VP Act by reason of the fact of his or her failure to appear. A third consideration is that the Attorney stands in a difficult position in that respect; it would seem odd that the first law officer, responsible inter alia for the administration of criminal justice, also has a special status to apply for a VP order. I do not express a concluded view on the issue. [31] In Potier Leeming JA referred to the question of the inter-relationship between the Vexatious Proceedings Act and interlocutory criminal applications arising out of a prosecution brought against a person. His Honour questioned whether such proceedings fell within the definition of "institute" or "conduct" a proceeding: [122] I have doubts about whether some of the 22 proceedings were in fact vexatious proceedings. Those doubts fall into three main categories. [123] The first is whether interlocutory criminal applications arising out of a prosecution brought against a person can fall within the definition of "institute" or "conduct" (as opposed to a private prosecution instituted by the vexatious litigant). I do not repeat what I have earlier said in Viavattene v Attorney General (NSW) at [78], and see also at [24] (Basten JA). Five of the 22 proceedings fall into this category: see [93]-[95], [131]-[134], [135]-[143], [171]-[176] and [183]-[184] of the reasons of the primary judge. [32] I respectfully agree with the doubts expressed by Basten JA and Leeming JA, although the issue is unnecessary to determine in the present case as the Attorney General has conceded that the order made by the primary judge should be amended to make clear that applications made by an accused in the course of criminal proceedings do not fall within the order."
Section 22(1) of the Vexatious Proceedings Act required the Minister "to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives." Such a review was undertaken and in May 2017, a report on the review was published and tabled in the New South Wales Parliament: see New South Wales Department of Justice, Report on the Statutory Review of the Vexatious Proceedings Act 2008, (May 2017) (the Report).
The Report made reference to the decisions in Viavattene and Potier, stating at paras 3.33-3.34 that: "As a number of stakeholders and recent case law has observed, a blanket order made by the Supreme Court under section 8(7) [of the Vexatious Proceedings Act], or certain orders made by the Land and Environment Court under section 8(8) [of the Vexatious Proceedings Act], could arguably restrict the rights and freedoms of a person who is subject to a vexatious proceedings order in criminal proceedings against him or her. More specifically, in any criminal proceedings brought against him or her, a litigant subject an order of wide application may be prevented from applying for bail, seeking a stay, applying to vacate a trial date, making procedural applications relating to prosecution, or appealing against a conviction (irrespective of whether the order was made in relation to his or her conduct in civil proceeding only). There is a fundamental distinction between restricting the capacity of people to bring unmeritorious civil proceedings against others, and restricting their capacity to defend criminal charges brought against them. Preserving the rights of individuals to fully defend criminal charges against them, and to apply for bail while any such charges are being prosecuted, is essential (noting also that section 73(1) of the Bail Act 2013 already provides that a court may refuse to hear a bail application if it considers the application is frivolous or vexatious, without substance, or has no reasonable prospect of success)." (emphasis added, footnotes omitted).
Recommendation 4 of the Report was as follows: "The Vexatious Proceedings Act 2008 be amended to provide that, unless it expressly states otherwise, a vexatious proceedings order does not prohibit a litigant from making applications in criminal proceedings brought against him or her, or from making bail applications." (emphasis in original). It may be noted that this recommendation did not refer to the making of appeals against criminal convictions or sentences, even though appeals were mentioned in para 3.33 of the Report together with various types of applications in criminal proceedings.
In 2018, the Vexatious Proceedings Amendment (Statutory Review) Act 2018 (NSW) was passed. In the words of the Attorney General of New South Wales (the Attorney), delivering the Second Reading speech, the Bill "implements all recommendations" from the Report. The Attorney stated (see New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 21 November 2017 at 58) that: "[t]he bill will help ensure that the justice system in New South Wales remains accessible but is also effective and efficient. It is important that judicial processes cannot be misused by a small minority of litigants to the detriment of others. However, it is also important to ensure that stable protections remain in place so that access to justice is not inhibited."
Later in his speech, the Attorney stated that Schedule 1[4] of the Vexatious Proceedings Amendment (Statutory Review) Act addressed issues relating to s 8 of the Vexatious Proceedings Act, noting (at 59) that: "[i]t clarifies the effect of a vexatious proceedings order, and ensures that litigants subject to vexatious proceedings orders are still able to access the courts in certain circumstances. There is a fundamental distinction between restricting the capacity of litigants to bring unmeritorious civil proceedings against others on the one hand, and on the other hand restricting their capacity to defend themselves against criminal charges brought against them. It is essential that the rights of individuals to fully defend criminal charges against them, and to apply for bail, are preserved."
Section 8(9) of the Vexatious Proceedings Act, as inserted by the Vexatious Proceedings Amendment (Statutory Review) Act, provides as follows: "A vexatious proceedings order does not stay, or prohibit a person from instituting or conducting, any criminal proceedings that are taken by the person in connection with or incidental to criminal proceedings against the person, except as expressly specified in the order." As with Recommendation 4 of the Report, this section does not in terms refer to appeals against criminal convictions and sentences.
Clause 7 of Sch 1 Pt 3 of the Vexatious Proceedings Amendment (Statutory Review) Act provided that s 8(9) of the Vexatious Proceedings Act extends to vexatious proceedings orders in force immediately prior to the commencement of that subsection. As has been noted at [6] above, Harrison J's order in the 2010 proceedings was deemed to be such an order, with the consequence that s 8(9), passed some 8 years after that order was made, nevertheless applies to it.
Section 8(9) was not the only amendment to the Vexatious Proceedings Act which sought to clarify the extent to which the Vexatious Proceedings Act affected criminal proceedings. One of the further amendments made was to s 4 of the Vexatious Proceedings Act, whereby the definition of "proceedings" was amended to make it clear that proceedings included "criminal proceedings", as follows: "(a) any civil proceedings, criminal proceedings or proceedings before a tribunal, and (b) any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and (c) any proceedings taken in connection with or incidental to proceedings pending before a court or tribunal, and (d) any interlocutory proceedings or applications, or procedural applications, taken in connection with or incidental to civil proceedings, criminal proceedings or proceedings before a tribunal, and (e) any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way."
Notwithstanding these amendments, the term "criminal proceedings" was left undefined in the Vexatious Proceedings Act. The key question for present purposes is whether or not an appeal to the District Court against a conviction in the Local Court is a "criminal proceeding… taken… in connection with or incidental to criminal proceedings" against Ms Klewer, for the purposes of s 8(9) of the Vexatious Proceedings Act. In my opinion, it is.
Such an appeal is certainly a proceeding instituted "in connection with … criminal proceedings against the person", namely, the relevant person who is the subject of a vexatious proceedings order. Further, when read in conjunction with the definition of "institute" in relation to proceedings under s 5(1)(d) of the Vexatious Proceedings Act (see [13] above), referring as it does to "criminal proceedings" and the "taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings", the carve out effected by s 8(9) from a blanket vexatious proceedings order prohibiting the institution of such proceedings should be understood to extend to appeals from criminal convictions.
It is appropriate to characterise an appeal to the District Court from a conviction recorded and penalty imposed by the Local Court as a "criminal proceeding". Such an appeal involves an exercise by the District Court of its criminal jurisdiction. In that context, s 9(2) of the District Court Act 1973 (NSW) provides that: "The Court shall have a criminal jurisdiction, consisting of: (a) its jurisdiction conferred by Part 4, and (b) the jurisdiction conferred by or under any other Act or law on the Court in its criminal jurisdiction."
Section 166 of the District Court Act, which falls within Part 4 of that Act, provides: "(1) The Court has the criminal jurisdiction conferred or imposed on it by or under this Act, the Criminal Procedure Act 1986 and any other Act. (2) The Court has generally the same criminal jurisdiction as each Court of Quarter Sessions had immediately before the commencement of this Act, except as regards any offences prescribed for the purposes of section 46 of the Criminal Procedure Act 1986."
Part 3 Division 1 of the Crimes (Appeal and Review) Act 2001 (NSW) provides for appeals to the District Court against convictions and sentences imposed by the Local Court. Section 18(1) of that Act, in providing that "[a]n appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 19", makes it plain that the appeal comprises a rehearing of the criminal charge(s). The proceedings in which that rehearing occurs have the character of "criminal proceedings". So much is also consistent with the observation by Basten JA in Patsalis v State of New South Wales (2012) 81 NSWLR 742, [2012] NSWCA 307 at [47] (Patsalis) that "[a]s a matter of principle, where an appeal lies by statute from a local court conviction to the District Court, the appeal would be classified as a criminal proceeding."
The purpose of the Vexatious Proceedings Act would also not be furthered by requiring a person the subject of a vexatious proceedings order to first have to obtain leave from an authorised court under s 14(2) of the Vexatious Proceedings Act in order to appeal from a conviction or sentence. To require such leave would, in my opinion, substantially qualify the important, albeit statutory, right of appeal conferred on a person convicted of a criminal offence by ss 11 and 12 of the Crimes (Appeal and Review) Act.
The Vexatious Proceedings Amendment (Statutory Review) Act effected in s 8(9) an amendment to the Vexatious Proceedings Act which recognised, subject to any specific and express restriction built into a vexatious proceedings order, the importance of allowing a person "to fully defend" him or herself from criminal charges, to adopt the Attorney's language from the Second Reading speech (see [21] above). In this context, the observations of Kirby P (with whom Campbell and James JJ agreed) in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 692 are worth recalling: "It is also a fundamental right of a person to have the facility of an effectivereview of a serious criminal conviction: cf Young v Registrar, Court of Appeal[No 3] (1993) 32 NSWLR 262. It would ordinarily follow that, if parliamentprescribed a right of appeal, that right ought be interpreted by the court inan appropriately ample manner. The right of a person convicted of anoffence to have a conviction and sentence "reviewed by a higher tribunalaccording to law" is recognised as a fundamental human right by art 14(5) ofthe International Covenant on Civil and Political Rights. Such internationalinstruments are a legitimate source of influence for the interpretation of ourdomestic law: see Mabo v The State of Queensland [No 2] (1992) 175 CLR1 at 42 per Brennan J (with whom Mason CJ and McHugh J agreed)."
Whilst greater clarity would have been provided had s 8(9) of the Vexatious Proceedings Act in terms included reference to the bringing of appeals from conviction and sentence, that section should, in light of the Report (to which regard may be had, pursuant to s 34 of the Interpretation Act 1987 (NSW) and the purpose of the legislation, be read as carving out from the scope of a vexatious proceedings order the institution and prosecution of an appeal against conviction and sentence.
In written submissions filed in this Court by the Attorney, it was put that: "… it is now clear that criminal proceedings fall within the purview of the [Vexatious Proceedings] Act and that such proceedings include proceedings by way of an appeal. Were it not for section 8(9), the [Vexatious Proceedings] Act would operate to require the applicant to obtain leave before commencing her appeal in the District Court. However, the Attorney submits that section 8(9) applies to the applicant's District Court appeal." The Local Court proceedings were criminal proceedings against the applicant. An appeal to the District Court against conviction is apt to be described as criminal proceedings 'in connection with' the Local Court proceedings. If there were any doubt about this, the principle of legality would favour a broad rather than a narrow construction of the words, 'in connection with'. If this is accepted, then Judge King's dismissal of the applicant's appeal involved an error of law. The decision should be set aside and an order in the nature of mandamus should issue requiring the District Court to deal with the applicant's appeal according to law."
Unsurprisingly, submissions filed on behalf of Ms Klewer adopted the Attorney's submissions and supported the relief he urged upon the Court.
In my opinion, Harrison J's vexatious proceedings order made in the 2010 proceedings against Ms Klewer, given effect as if it had been made under the Vexatious Proceedings Act, did not require her to obtain leave to pursue her appeal against her conviction and sentence in the Local Court.
It follows that King SC DCJ was in error in summarily dismissing Ms Klewer's appeal by reason of the vexatious proceedings order and the failure of Ms Klewer to obtain leave prior to instituting that appeal. Further, as noted at [11] above, it follows that the application to institute proceedings by way of appeal made to Fagan J in 2019 was unnecessary, and his Honour's refusal to grant such leave does not preclude Ms Klewer from pursuing her appeal in the District Court.
In fairness to both King SC DCJ and Fagan J, in both cases Ms Klewer proceeded on the basis that leave was required, and both judges were without the benefit of submissions which pointed out the important statutory qualification on vexatious proceedings orders effected by the 2018 amendments to the Vexatious Proceedings Act.

Leave to bring judicial review proceedings

It remains to consider whether or not Ms Klewer required leave pursuant to s 14(2) of the Vexatious Proceedings Act to commence her proceedings in this Court. In my opinion, she did.
These proceedings were proceedings for judicial review of King SC DCJ's decision. They were not "criminal proceedings" within the meaning of s 8(9) of the Vexatious Proceedings Act, even though they sought judicial review of a decision that did have that character.
In this context, I respectfully differ from the reasons of Basten JA (see at [72]-[77] below). To the extent that his Honour's reasoning draws on this Court's decision in Patsalis, the concession made by the State in Patsalis which his Honour, in that case, considered to have been correctly made, was one made in the context of the Felons (Civil Proceedings) Act 1981 (NSW). At [56] of that decision, Basten JA observed: "A statutory regime where there has been a conscious attempt to be comprehensive in terms of the proceedings for which leave is required may be seen in the Vexatious Proceedings Act 2008 (NSW), ss 4 and 5. The Felons Act is, by contrast, a simple statute directed to a particular mischief, being the feudal notion of civil death for capital offences which was out of tune with modern attitudes to punishment, including rehabilitation, even of offenders convicted of most serious crimes. The mischief was alleviated by removing the disability, but subject to the qualification to be found in the requirement for leave. The requirement for leave is itself a constraint on access to the courts, being an important civil right which is no longer removed from those convicted of serious indictable offences. Accordingly, it is appropriate to adopt an approach to the question of statutory construction which limits the civil rights in question only to the extent necessary to give effect to the statutory provision."
There is a significant difference, as his Honour observed, between the Felons (Civil Proceedings) Act and the Vexatious Proceedings Act.
Nor does the fact that, in Potier, the Attorney disavowed the need for a person made the subject of a vexatious proceedings order to obtain leave under the Vexatious Proceedings Act to appeal such an order, mean or dictate that leave is not required for the institution of judicial review proceedings by a person the subject of such an order.
Fully accepting, as I do, the importance of principles of statutory interpretation associated with decisions such as Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63 to which Basten JA refers in his judgment, the language of s 84(1) of the Supreme Court Act, the order made by Harrison J pursuant to that section, and s 8(7) of the Vexatious Proceedings Act in my opinion requires the grant of leave to bring proceedings for judicial review.
I would, in the circumstances, grant leave as sought in prayer 1 of the summons in light of the reasons given at [12]-[35] above as to why Ms Klewer did not require leave to bring an appeal in the District Court.

Conclusion and orders

As Basten JA in his separate reasons (at [81]-[83]) has observed, the Summons in this Court was filed out of time. I would grant an extension of time for the reasons his Honour gives.
I also agree with his Honour that, to the extent that the orders sought in prayer 2 of the Summons sought relief in respect of the decision of the Local Court, no order can or should be made in that respect.
For the above reasons, I would make the following orders: 1. Extend time for the filing of the Summons commencing proceedings in this Court up to and including 2 July 2019. 2. Pursuant to s 14(2) of the Vexatious Proceedings Act 2008 (NSW), grant leave to Lucy Patricia Klewer to bring proceedings 2019/204934 in this Court. 3. Set aside the decision of King SC DCJ of 26 November 2018 dismissing Ms Klewer's appeal from her conviction in the Local Court of New South Wales on 29 October 2018. 4. In lieu thereof, remit the matter to the District Court of New South Wales for the determination of that appeal. 5. Otherwise dismiss the summons.
BASTEN JA: In August 2018 the applicant, Lucy Patricia Klewer, was convicted and sentenced on three charges in the Local Court at Coffs Harbour. On 2 November 2018 she lodged an appeal in the District Court. On 26 November her appeal was dismissed by Judge King on the sole basis that she was the subject of a vexatious proceedings order and required leave of the Supreme Court to institute any proceedings. She did not have that leave.
By summons filed in this Court on 7 July 2019 she sought judicial review of the order made in the District Court. (The filing of the summons required an extension of time which will be addressed after considering the basis of the application.) It is not in dispute that the applicant remains the subject of a vexatious proceedings order made by Harrison J on 5 February 2010.
The issues raised on the summons are: 1. whether the applicant needed leave to institute an appeal to the District Court from her convictions and sentences in the Local Court; 2. whether the applicant needs leave to commence the present proceedings in this Court; 3. the basis on which this Court can grant relief, and 4. whether the applicant should have an extension of time. Other matters, not dispositive of these proceedings, will also be noted.
Although the named respondent was the Director of Public Prosecutions, the Attorney General intervened and, by order made on 14 October 2019, was joined as the third respondent. The Director had no separate representation. The Attorney's submissions supported an order setting aside the order of the District Court. I agree that such relief is appropriate, but not on the basis contended for by the Attorney.
Counsel for the applicant, appointed on a referral to the Bar Association's pro bono panel, proposed no amendment to the summons (a matter addressed in the referral) and adopted the submissions of the Attorney, adding no further analysis of the law.
The factual, procedural and statutory background is set out in the judgment of the President and will not be repeated here. I agree that the decision of Judge King should be set aside and the matter remitted to the District Court for determination of the appeal from orders made in the Local Court.

Requirement of leave to appeal to the District Court

The order made by Harrison J on 5 February 2010 relevantly required that the applicant "shall not, without leave of the Court, institute any legal proceedings in any court." [1] That order was made pursuant to an application by the Attorney under s 84(1) of the Supreme Court Act 1970 (NSW), as then in force. Section 84 was repealed by the Vexatious Proceedings Act 2008 (NSW), which commenced on 1 December 2008. Nevertheless, the Attorney's application predated the repeal and applications made under s 84 of the Supreme Court Act continued to be dealt with under that provision as if it had not been repealed. [2] Thus, although made after the commencement of the Vexatious Proceedings Act, the order made by Harrison J was made pursuant to the authority conferred by s 84(1) of the Supreme Court Act. The scope and effect of the order depends on the terms of that provision, and not on the terms of the Vexatious Proceedings Act.
It is necessary, however, to address certain savings and transitional provisions in Sch 1 of the Vexatious Proceedings Act, upon which the Attorney relied. Clause 4 of Sch 1 reads as follows: 4 Certain existing orders taken to be vexatious proceedings orders (1) This clause applies to any order (an existing order) that: (a) was made under a repealed vexatious litigant provision, and (b) is in force immediately before the commencement of this Act, and (c) operates to prevent a person from instituting or continuing proceedings without the leave of the Supreme Court or the Land and Environment Court. (2) An existing order is taken to be (and to have effect as if it were) a vexatious proceedings order made under this Act by the Supreme Court or the Land and Environment Court (as the case may be), and may be varied, set aside or reinstated accordingly.
A definition of "repealed vexatious litigant provision" includes s 84 of the Supreme Court Act. [3] That aspect of subcl (1)(a) is engaged in the present case. It is also true that the order made by Harrison J falls within the terms of subcl (1)(c). However, the order was not "in force immediately before the commencement of [the Vexatious Proceedings Act]", and therefore did not satisfy par (b). The terms of par (b) are not ambiguous; if they were, however, they could be read in the context of par (a) which speaks in the past tense of an order that "was made". That language is consistent with reference to an order made before the commencement of the Vexatious Proceedings Act. It follows that Harrison J's order is not an "existing order" for the purposes of Sch 1 to the Vexatious Proceedings Act.
Although it is not in doubt that the order was made under the previous statutory scheme, it is convenient to set out Sch 1, cl 3 in full, in order to understand the operation of cl 3(2). 3 Repealed vexatious litigant provisions continue to apply to pending applications (1) Subject to subclause (2), any application made under a repealed vexatious litigant provision that is pending immediately before the commencement of this Act may be continued and dealt with under the provision as if the provision had not been repealed by this Act. (2) If the Supreme Court … makes an order in relation to an application continued by subclause (1) that operates to prevent a person from instituting or continuing proceedings without the leave of the Supreme Court …, that order is, on and from the date it is made, taken to be (and to have effect as if it were) a vexatious proceedings order made under this Act by the Supreme Court …, and may be varied, set aside or reinstated accordingly.
Despite the opening words of cl 3(1) ("[s]ubject to subclause (2)"), subcl (2) does not qualify subcl (1). Rather, subcl (1) deals with the application, while subcl (2) deals with the order made on the application. It provides that the order is taken to be a "vexatious proceedings order" within the meaning of that term in the Vexatious Proceedings Act. That is, it is taken to be an order made under s 8 of that Act.
The effect of cl 3(2) is procedural and mechanical, rather than substantive. Thus the order made under the Supreme Court Act, s 84, may be "varied" or "set aside", pursuant to s 9 of the Vexatious Proceedings Act, and may be "reinstated", pursuant to s 10 of the Vexatious Proceedings Act. However, cl 3(2) does not itself vary the reach or scope of such an order. Nor should it be taken by implication to do so. Because a vexatious proceedings order is a fetter on the right of the person subject to the order to obtain access to justice, that fetter should not be extended by implication based on a provision which does not purport to have a substantive effect on the reach or scope of an order made in accordance with the repealed legislation.
Accepting that Harrison J's order became an order under the Vexatious Proceedings Act pursuant to cl 3(2), that provision did not expand its scope beyond its effect as an order made under s 84 of the Supreme Court Act. Accordingly, the scope of the order will depend upon its terms and the scope of the authority given by s 84 of the Supreme Court Act.
As will be explained shortly, doubts have been expressed in this Court as to the scope of the power to make a vexatious proceedings order in relation to particular forms of proceeding. As a result, legislation was passed in 2018 providing that a vexatious proceedings order "does not stay, or prohibit a person from instituting or conducting, any criminal proceedings that are taken by the person in connection with or incidental to criminal proceedings against the person, except as expressly specified in the order." [4] Whatever inference may be drawn from the amendment as to what effect a vexatious proceedings order would otherwise have had, that inference would be irrelevant in the present case. That is because the terminology of the Vexatious Proceedings Act is more detailed than was s 84, and such an inference as to the former could not affect the latter. In any event, the second reading speech by the Attorney [5] suggests that the amendments were by way of clarification rather than indication of a change in the law.
It is necessary, therefore, to address the scope and operation of s 84(1) of the Supreme Court Act, which read as follows: 84 Vexatious litigant (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.
The key passage in this provision is the identification of that which may be prohibited, absent leave of the court, namely the ability to "institute any legal proceedings in any court". That language raises a number of questions as to its scope and operation. The apparent generality of the language may need to be read down to avoid anomalous, implausible or even absurd results. For example, for some purposes, a bail application may constitute a "proceeding", but there are good reasons to suppose that such an application would not fall within the terms of s 84(1).
Relevantly for present purposes, a question arises with respect to an appeal from a conviction and sentence in the Local Court (in proceedings brought against the person) by the person in the District Court. It is not in question that such an order can have no operation with respect to criminal proceedings brought against a person. For some purposes an appeal instituted by the defendant in the Local Court will be a separate "proceeding". [6] Nevertheless, each statutory scheme must be examined in context. An appeal brought from the Local Court to the District Court by a person the subject of prosecution in the Local Court is governed by the Crimes (Appeal and Review) Act 2001 (NSW) ("Appeal and Review Act"), ss 17-19. Although such appeals are usually conducted on the basis of evidence given in the Local Court, and described as being "by way of rehearing", such an appeal is in effect a fresh hearing in which the prosecution continues to bear the burden of proving the offence beyond reasonable doubt and the prosecutor, not the appellant, is the moving party. Accordingly, it is artificial to describe such an appeal as involving the person charged with offences instituting proceedings against any other person. Such an appeal is therefore quite different from a private prosecution instituted by the person who thus becomes the prosecutor.
In considering the operation of s 84(1), it is also important to bear in mind the statutory effect of an appeal to the District Court from a conviction and sentence in the Local Court. Where the appeal is lodged as of right, the sentence is automatically stayed when the notice of appeal is lodged, pursuant to s 63(2)(a) of the Appeal and Review Act. It is true that the suspension only operates, where an appeal is the subject of an application for leave, when leave to appeal is granted: s 63(2)(b). However, that provision envisages that there is a right to seek leave to appeal, and makes specific provision for such cases.
Where there is an appeal as of right, imposing a requirement that a person convicted and sentenced to imprisonment obtain leave from a Supreme Court judge before lodging an appeal to the District Court is likely to result in the person spending a period in custody, possibly a considerable portion of the sentence, before the statutory stay can take effect. That result is not because of anything to do with his or her conviction, sentence or the nature of the offending, but rather, if s 84(1) applies, it is because the person has on some prior occasions instituted vexatious legal proceedings. Further, applications for vexatious proceedings orders under s 84 could only be made by the Attorney General on behalf of the State. It is implausible that the State intended to put persons in a disadvantageous position in responding to criminal prosecutions brought by officers of the State, because of unrelated litigious conduct.
Related issues have arisen under the Vexatious Proceedings Act, which were the subject of comment in Viavattene v Attorney General (NSW). [7] The approach to statutory construction adopted in Viavattene sought a clear expression of intention in the legislation relating to vexatious litigants, before accepting that an order could be made limiting their power to appeal from criminal convictions and sentences. A similar approach is more readily adopted in relation to s 84(1) which speaks in terms of the utmost generality without reference to specific kinds of proceedings. It is precisely such a case to which the principle stated by O'Connor J in Potter v Minahan, [8] quoting Maxwell on Statutes, applies: "One of these presumptions is that the legislature does not intend to make any alteration in the law beyond what it explicitly declares … either in express terms or by implication; or, in other words, beyond the immediate scope and object of the Statute. In all general matters beyond, the law remains undisturbed. It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness …; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used."
Section 84(1) permits a great intrusion on access to justice for affected individuals; that alone is sufficient to cast orders in the confined and targeted terms. It is of course true, as Gageler and Keane JJ explained in Lee v New South Wales Crime Commission: [9] "[314] The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that '[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve'."
However, access to justice is a broad underlying value of high importance, not a closely defined, particular right. The language used in s 84(1) is not carefully tailored to a specific situation; rather it effects a broad conferral of power on the Supreme Court. It should not be read down by reference to unexpressed limitations, [10] but its scope remains a matter of statutory construction. No doubt the legislature expected that it would be carefully applied by the judges of the Court, both in imposing an order and in considering a grant of leave. Nevertheless, an order can have serious legal consequences which may not be foreseen when the order is imposed, and which will have effect before any application for leave can be determined.
Given the considerations noted above, in my view the general terms of s 84(1) do not warrant a broad reading. Rather, the power to make an order prohibiting the institution of proceedings should not apply to criminal proceedings where the charge was originally laid against the offender and where he or she has a statutory right of appeal to the District Court.
On that understanding of the scope of the power conferred by s 84(1), the order made in the most general terms by Harrison J should be understood not to apply so as to exceed power. Accordingly, it did not apply to the appeal lodged by the applicant in the District Court with respect to her convictions and sentences in the Local Court.

Requirement for leave to commence judicial review proceedings

The present proceedings are brought in the supervisory jurisdiction of this Court, as given statutory recognition in s 69 of the Supreme Court Act. That jurisdiction authorises this Court to maintain the legal boundaries of power conferred on other courts, tribunals and those exercising executive powers of the State. As explained in Kirk v Industrial Court of New South Wales, [11] that jurisdiction is constitutionally protected from an exercise of legislative power of the State to abolish or remove any inherent characteristic of the jurisdiction. That is not to say that the State cannot regulate the invocation of the jurisdiction by imposing a requirement that an applicant seek leave to proceed. However, there is no such general requirement within s 69. It is therefore a question of construction of two provisions within the Supreme Court Act in order to determine whether s 84(1) allows for the imposition of a leave requirement in relation to proceedings invoking the supervisory jurisdiction.
There are various elements of the supervisory jurisdiction. In Patsalis v State of New South Wales, [12] this Court considered whether the requirement under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW), that a person convicted of a serious indictable offence "may not institute any civil proceedings in any court except by leave of that court", extended to proceedings for judicial review. Before this Court, the State accepted that it did not. [13] For reasons explored in that decision, the concession was accepted as correct. [14] Subsequently, in Potier v Attorney General in and for the State of New South Wales, [15] the Court held that, because of the breadth of the definitions of what may constitute the institution of proceedings, orders made under the Vexatious Proceedings Act require great care to ensure that open access to justice is not disproportionately constrained. The question whether such an order could extend to, or should be construed as extending to, a leave requirement with respect to a writ of habeas corpus was noted, but not determined. [16] However, and importantly for present purposes, Leeming JA noted the disavowal by the Attorney of any suggestion that the appeal brought from the vexatious proceedings order itself required the grant of leave. [17] A similar conclusion had been reached by the Queensland Court of Appeal in Conde v Gilfoyle, [18] in relation to substantially identical legislation.
The application of these principles leads, in the present case, to the conclusion that leave is not required for these proceedings. These proceedings have two purposes, namely (i) to require the District Court to exercise its statutory functions with respect to the applicant's appeal to it, in accordance with law, and (ii) to determine the proper scope of the vexatious proceedings order made in this Court. The importance of the latter purpose led the Attorney to seek to intervene. [19]
In relation to the first purpose, the conclusion that the order was not so broad as to cover an appeal in the criminal jurisdiction of the District Court requires, in principle, acceptance that the order did not extend to an application in the supervisory jurisdiction to give effect to the exercise of that criminal jurisdiction.
In relation to the second purpose, if, properly construed, the expansive definition of the institution of proceedings in the Vexatious Proceedings Act does not extend to an appeal from the imposition of such an order, the broad generality of the power conferred by s 84(1) of the Supreme Court Act should be similarly read down. Consistently with that approach, proceedings in the supervisory jurisdiction which seek to determine the scope of such an order should also fall outside the order itself.
For these reasons, the applicant did not require leave to commence the proceedings in this Court.

Basis on which this Court can grant relief

The record of the orders made in the District Court on 26 November 2018 identified three charges brought against the applicant, being one under the Crimes Act 1900 (NSW) and two under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and stated: "ORDERS: Leave from Supreme Court required to bring this action. Leave has not been obtained. Matter dismissed."
The order was contained in the third sentence; the reasons were contained in the first two sentences. For the reasons set out above, the reasons revealed a legally erroneous failure on the part of the District Court to exercise its statutory jurisdiction. Such a failure constitutes jurisdictional error: Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia. [20] The Court has power to quash the order, thus leaving an undetermined appeal on foot.
That error says nothing about the merit of the appeal; that issue is not available for resolution in this Court. The orders sought in the summons included relief with respect to the orders made in the Local Court. No order can be made in that respect.

Extension of time

The summons was filed some seven months after orders were made in the District Court. The time limit prescribed by the Uniform Civil Procedure Rules 2005 (NSW), r 59.10(1), is three months. Accordingly, the applicant requires an extension of time within which to commence the proceedings.
Although the Court has power to extend time pursuant to r 59.10(2), it would not usually do so in the absence of an affidavit explaining the reasons for the delay. Given that the applicant is represented by counsel, it is surprising that no attempt has been made to amend the summons (which is in large part incoherent and misconceived), or to provide an affidavit or submissions explaining the delay. Nevertheless, it may be inferred that until the applicant received some form of legal advice following the refusal of leave by Fagan J on 10 May 2019, the question of whether leave was required was not considered. The summons was filed less than two months later.
The Attorney takes no point with respect to this issue. Given that the points sought to be raised are of substance and that the applicant is entitled to the relief sought, an extension of time up to and including 2 July 2019 should be granted.

(a) refusal of application for leave

The orders of this Court will require that the appeals be heard and determined by the District Court. In that context, it is desirable that some observations be made in relation to an earlier proceeding in the Supreme Court. As noted by the applicant when unsuccessfully seeking an adjournment of the District Court appeals so that her lawyer could be present to represent her, an application had already been made to the Supreme Court for leave. That application was considered and refused before the proceedings were commenced in this Court. [21] In the course of refusing leave, Fagan J noted that a defendant is entitled to appeal to the District Court as of right against conviction or sentence or both, and that an appeal is in general conducted by way of rehearing on the evidence given in the Local Court. He continued: "The applicant is therefore not required to formulate grounds of appeal. But for the purposes of the present application, this Court would expect to see some explanation of the basis upon which she contends that there is a prospect of there being a different outcome upon rehearing of the matter in the District Court."
Noting that there had been no explanation given, the judge proceeded to review the transcript of the proceedings before the magistrate. A review of those proceedings led him to conclude there was no legal or procedural defect, nor that there was any prospect of a different result if the charges were "reheard on the same evidence." [22]
Although there has been no appeal from that judgment, the conclusion that no leave was required means that the application for leave was misconceived and the reasoning and conclusions of the judge are not binding on, and are irrelevant to, the exercise of jurisdiction in the District Court. In any event, the conclusions reached lacked the benefit of submissions and legal assistance. Further, the applicant appeared unrepresented in the Local Court. It may be that she will have representation in the District Court, as she asserted in seeking an adjournment before King DCJ on 26 November 2018.
Finally, it should be noted that there is at least doubt attending the validity of one of the sentences. The materials before this Court do not disclose the basis on which the magistrate distinguished between the two offences which were the subject of concurrent custodial sentences and the third offence for which a non-custodial community correction order was imposed. However, once it has been determined that a custodial sentence be imposed, even if it is to be served in the community, there is an apparent inconsistency in imposing a concurrent non-custodial order.

(b) whether appeal out of time

Fagan J also noted that by the time the purported appeal was dismissed by King DCJ, the 28 days within which an appeal was to be lodged under s 11 of the Appeal and Review Act had expired. Although an extension of time could be granted under s 13 of the Appeal and Review Act, an application was required to be made within three months of the relevant orders. As sentences had been imposed on 29 October 2018, the judge noted that the three month period expired on 28 January 2019. That period had expired by the time judgment was given refusing leave. The judge concluded that, even if leave were to be granted, the applicant might be precluded from lodging an appeal against her conviction and sentence in any event. [23]
These issues no longer arise. The order of this Court setting aside the judgment of the District Court judge dismissing the appeals will operate so as to leave the appeals on foot, but unresolved.

What is not clear is whether the sentences imposed by the Local Court on 29 October 2018 have been stayed, or steps have been taken to enforce them. The Local Court records show that the applicant was sentenced to imprisonment for 8 months with respect to one offence of common assault (sequence 1) and one offence under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (sequence 3). Each sentence was fixed to commence on 29 October 2018 and was ordered to be served by way of intensive correction in the community, pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act"). Further, with respect to a second under s 13(1) (sequence 5) the applicant was convicted and directed to enter into a community correction order, pursuant to s 8 of the Sentencing Procedure Act. That order also specified a period of 8 months to commence on 29 October 2018.
Upon lodgement of the appeal on 2 November 2018, a statutory stay on the execution of the sentences commenced pursuant to s 63(3) of the Appeal and Review Act. It may have been assumed that, upon the appeals being dismissed on 26 November 2018, the appeals had been "finally determined" and the stay automatically lifted.
The execution of the sentences was not stayed by the application to the Common Law Division for leave to appeal to the District Court. However, there is a separate statutory stay effected by s 69C(2) of the Supreme Court Act from the date when proceedings seeking judicial review of an appeal against a conviction or sentence are commenced. If leave were required to commence such proceedings, the stay might not operate until leave was granted. However, if leave were not required, the stay would operate from the date of commencement of the proceedings. In the present case, the proceedings were filed on 2 July 2019. That would mean that the sentences had not been stayed for a period of a little under a month.

Orders

I would make the following orders: 1. Extend time for the filing of the summons commencing proceedings in this Court up to and including 2 July 2019. 2. Set aside order made in the District Court on 26 November 2018 dismissing the applicant's appeal from her convictions and sentences in the Local Court. 3. Remit the matter to the District Court for determination of the appeal. 4. Otherwise dismiss the summons.
SIMPSON AJA: By summons filed in 2006, the Attorney General of NSW sought, against Ms Lucy Patricia Klewer, orders pursuant to s 84(1) (now repealed) of the Supreme Court Act 1970 (NSW). Section 84(1) then provided: "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."
The orders sought by the Attorney-General were to the effect that: (i) Ms Klewer not, without leave of the Court, institute any legal proceedings in any court; and (ii) any proceedings instituted by Ms Klewer before that time not be continued without the leave of the Court.
For reasons that are not apparent from the materials before this Court, that application was not heard until May 2009, with final submissions on 18 December 2009. Judgment was given by Harrison J on 5 February 2010: Attorney-General in and for the State of NSW v Klewer (No 3) [2010] NSWSC 9. His Honour made the following orders: 1. Order that [Ms Klewer] shall not, without the leave of the Court, institute any legal proceedings in any Court. 2. Order that any legal proceedings instituted by [Ms Klewer] before the making of order (1) shall not be continued without the leave of the Court.
Between the making of the application in 2006 and the date of the orders s 84 was repealed by Schedule 2.2 of the Vexatious Proceedings Act 2008 (NSW) which came into effect on 1 December 2008. In substance the Vexatious Proceedings Act re-enacted the provisions of s 84, although in significantly different and more detailed terms. The relevant provisions of the Vexatious Proceedings Act are: 4 Meaning of "proceedings" In this Act, proceedings includes: (a) any civil proceedings, criminal proceedings or proceedings before a tribunal, and … (e) any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way. 5 Instituting proceedings (1) In this Act,institute, in relation to proceedings, includes: … (c) for criminal proceedings - the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender, and (d) for civil or criminal proceedings or proceedings before a tribunal - the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings. … 8 Making of Vexatious Proceedings order (1) When orders may be made An authorised court may make an order under this section (a vexatious proceedings order) in relation to a person if the Court is satisfied that: (a) the person has frequently instituted or conducted vexatious proceedings in Australia, or … … (7) Orders that may be made by Supreme Court The Supreme Court may make any one or more of the following vexatious proceedings orders in relation to a person: (a) an order staying all or part of any proceedings in New South Wales already instituted by the person, (b) an order prohibiting the person from instituting proceedings in New South Wales, (c) any other order that the Court considers appropriate in relation to the person. … (9) A vexatious proceedings order does not stay, or prohibit a person from instituting or conducting, any criminal proceedings that are taken by the person in connection with or incidental to criminal proceedings against the person, except as expressly specified in the order. (10) A vexatious proceedings order does not stay, or prohibit a person from making, a bail application (within the meaning of the Bail Act 2013). ... Schedule 1 Savings, transitional and other provisions … Part 2 Provisions consequent on enactment of this Act 2 Definition In this Part: repealed vexatious litigant provision means … (a) … (b) section 84 of the Supreme Court Act 1970. 3 Repealed vexatious litigant provisions continue to apply to pending applications (1) Subject to subclause (2), any application made under a repealed vexatious litigant provision that is pending immediately before the commencement of this Act may be continued and dealt with under the provision as if the provision had not been repealed by this Act. (2) If the Supreme Court … makes an order in relation to an application continued by subclause (1) that operates to prevent a person from instituting or continuing proceedings without the leave of the Supreme Court … that order is, on and from the date it is made, taken to be (and to have effect as if it were) a vexatious proceedings order made under this Act by the Supreme Court … and may be varied, set aside or reinstated accordingly.
The transitional provisions, contained in Schedule One, are, for present purposes, important. Clause 3 addresses the position where proceedings under s 84 had been commenced but not finalised prior to 1 December 2008. Clause 4, which I have, in the interests of brevity, not reproduced, addresses the position of orders already made under s 84. It has no present application.
The application made by the Attorney General was "pending immediately before the commencement" of the Vexatious Proceedings Act. The effect of subcl (1) of cl 3 of Schedule 1 was that that application could be "continued and dealt with" under s 84. That was what happened, and Harrison J made orders essentially in the terms of s 84. The effect of subcl (2) of cl 3 was that those orders are "taken to be (and have effect as if [they] were" orders made under the Vexatious Proceedings Act.
On 29 October 2018 Ms Klewer was convicted in the Local Court of a summary offence. By Part 3 Div 1 the Crimes (Appeal and Review) Act 2001 (NSW) ("the Appeal and Review Act") she was, subject to any restriction consequent upon the orders made by Harrison J, entitled to appeal to the District Court against the conviction. On 2 November 2018, pursuant to those provisions, she filed an appeal. The appeal was dismissed by King SC DCJ on the ground that it was a proceeding the institution of which (without leave) was prohibited by the orders of Harrison J for which Ms Klewer had not sought or obtained leave. That dismissal is the subject of the present proceedings, in which Ms Klewer seeks relief under s 69 of the Supreme Court Act. Because the subject of her application is an adjudication of an appeal of the District Court, Ms Klewer must establish jurisdictional error: District Court Act 1973, s 126. She asserts jurisdictional error in that, in dismissing her appeal without proceeding to a hearing on the merits, King SC DCJ wrongly failed to exercise jurisdiction.
The two principal issues that arise for determination in the present proceedings are whether Ms Klewer required leave for the commencement of the District Court appeal against her conviction, and whether she requires leave for the commencement of the present proceedings. If she required leave to commence the District Court appeal, no jurisdictional error is demonstrated by the dismissal of the appeal. If she did not require leave to commence the District Court appeal, then jurisdictional error is established.
There is, in my opinion, no difference in substance between the orders made by Harrison J under s 84 and equivalent orders that could have been made under the Vexatious Proceedings Act. Accordingly, by cl 3(2) of Schedule 1 of the Vexatious Proceedings Act, the orders of Harrison J are taken to be and to have effect as if they were orders made under s 8(7)(b) and (a) thereof respectively.
The first question that arises is what is encompassed in those orders, specifically whether an appeal under Part 3 Div 1 of the Appeal and Review Act against a criminal conviction (or sentence) is a proceeding of such a kind that its institution or continuation is, unless leave is given, prohibited.
The answer to that question lies in subsection (9) of s 8 of the Vexatious Proceedings Act. Subsection (9) is explicit that a vexatious proceedings order does not operate to stay, or to prohibit, the commencement of "any criminal proceedings that are taken by the person in connection with or incidental to criminal proceedings against the person" unless otherwise specified in the order. In my opinion an appeal to the District Court against a conviction in the Local Court is plainly such a proceeding. On that basis alone, I conclude that Ms Klewer did not require leave before commencing the appeal. For that conclusion it is not necessary to go beyond the plain language of subs (9). The more detailed discussion in the judgment of the President, which I have had the advantage of reading in draft, strengthens that view.
Subsection (9) was not part of s 8 as originally enacted. It was inserted into the Vexatious Proceedings Act in 2018, in circumstances more fully outlined in the judgment of the President. There may, therefore, be room for doubt about whether, prior to the enactment of subs (9), criminal appeals were excluded from the prohibition imposed by a vexatious proceedings order. Any such doubt was removed by the enactment of subs (9).
Accordingly, jurisdictional error has been established and, subject to what follows, Ms Klewer is entitled to the relief she seeks.
The second question is whether Ms Klewer requires leave to bring the present proceedings. That, too, in my opinion, depends upon the proper construction of s 8(9).
What is excluded by s 8(9) from the prohibitive effects of a vexatious proceedings order is (or are) "criminal proceedings that are taken … in connection with or incidental to criminal proceedings …". The use of the word "criminal" as it first appears in that collocation is, at first sight, puzzling, and its purpose obscure. On closer examination, however, its purpose emerges. Its use serves to distinguish between "proceedings" (in general) and proceedings that can properly or reasonably be characterised as "criminal". It is the latter, and only the latter, that are excluded from the prohibitive effects of a vexatious proceedings order.
Appeals against conviction or sentence could properly be characterised as "criminal proceedings … taken … in connection with or incidental to criminal proceedings …". As the President has observed, they involve the exercise of criminal jurisdiction; in this case, the criminal jurisdiction of the District Court. In other words, the legislature intended to protect the appellate rights of persons subject to criminal proceedings against them by excluding the prohibition imposed by vexatious proceedings orders, so long as the exercise of those rights involved the invocation of criminal jurisdiction. By contrast, while applications under s 69 of the Supreme Court Act in respect to criminal conviction and sentence may reasonably be characterised as "proceedings … taken … in connection with or incidental to criminal proceedings …", they would not, in ordinary language, reasonably be characterised as "criminal proceedings … taken … in connection or incidental to criminal proceedings …". Applications under s 69 do not involve the exercise of criminal jurisdiction. The legislature did not intend the subs (9) exclusion to extend to collateral rights, in the civil jurisdiction of the courts, to call in question the criminal process.
Also not to be overlooked in this context, are the important provisions of s 69C of the Supreme Court Act. Section 69C applies to proceedings in the Supreme Court for judicial review of determinations made by the District Court in appeal proceedings relating to conviction or orders made by the Local Court, or sentences imposed by the Local Court - that is, appeals under Part 3 Div 1 of the Appeal and Review Act. By subss (2) and (4) of s 69C execution of such a sentence, or any order (other than an apprehended violence order under the Crimes (Domestic and Personal Violence) Act 2007 (NSW)) is stayed until final determination of the judicial review proceedings. In the light of s 69C it is unlikely that the legislature intended to exclude proceedings under s 69 from the requirement that, where a vexatious proceedings order is in force, leave be obtained before the commencement of the proposed proceedings. It would be anomalous if a person whose previous history of habitual, persistent and groundless institution of proceedings (to borrow the language of s 84) had been found to justify the restrictions of a vexatious proceedings order could, nevertheless, have unfettered access to the court through proceedings that would, on their commencement and by force of statute, operate to stay orders made in the criminal justice process. The mere commencement of a proceeding under s 69, no matter how baseless, would put the criminal process into abeyance.
I appreciate, as alluded to in the judgment of Basten JA (which I have also had the advantage of reading in draft) the importance of the supervisory jurisdiction this Court in relation to access to justice. But a vexatious proceedings order does not deny such access: it merely interposes a leave requirement in the case of an individual who has been shown to have repeatedly misused that access.
I accordingly agree with the President that Ms Klewer does require leave to bring these proceedings. I also agree, for the reasons given by the President, that leave should be given, and that the time for commencing the proceedings should be extended. I also agree that the decision of King SC DCJ of 26 November 2018 should be set aside.
I agree with the orders proposed by the President.

Endnotes

Attorney General for the State of New South Wales v Klewer (No 3) [2010] NSWSC 9; 264 ALR 535; see order set out at [4].
Vexatious Proceedings Act, Sch 1, cl 3(1).
Vexatious Proceedings Act, Sch 1, cl 2(b).
Vexatious Proceedings Amendment (Statutory Review) Act 2018 (NSW), Sch 1[4] inserting new provisions in s 8.
See [21] above.
See, for example, Voicu v The Owners-Strata Plan No 1624 [2020] NSWCA 52 at [26]-[27].
[2015] NSWCA 44 at [78] (Leeming JA).
(1908) 7 CLR 277 at 304; [1908] HCA 63.
(2013) 251 CLR 196; [2013] HCA 39.
The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc (1994) 181 CLR 404 at 421; [1994] HCA 54.
(2010) 239 CLR 531; [2010] HCA 1.
(2012) 81 NSWLR 742; [2012] NSWCA 307.
Patsalis at [9].
Patsalis at [57].
(2015) 89 NSWLR 284; [2015] NSWCA 129.
Potier at [20].
Potier at [49].
[2010] QCA 109 at [15]-[30] (Fraser JA, McMurdo P and Peter Lyons J agreeing).
Klewer v Director of Public Prosecutions (NSW) [2019] NSWCA 253 at [6]-[7] (White JA).
(2012) 249 CLR 398; [2012] HCA 25 at [34] (French CJ), [65] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Application of Klewer [2019] NSWSC 525 (Fagan J, 10 May 2019).
Application of Klewer at [24].
Application of Klewer at [23].

Amendments 21 April 2020 - Amended Decision section of coversheet by adding new order (1).

Deleted the words "Decision under review" appearing above the Headnote. 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: 21 April 2020

Vexatious Proceedings Amendment (Statutory Review) Act 2018(NSW)

Vexatious Proceedings Act 2008(NSW)ss 4, 5(1)(d), 8, 9, 10, 14(1), 14(2), 22(1), Sch

Crimes (Appeal and Review) Act 2001(NSW)ss 11, 12, 13, 17, 18(1), 19, 63(2), 63(3), Pt

District Court Act 1973(NSW)ss 9(2), 126, 166, Pt

Supreme Court Act 1970(NSW)ss 69, 69C, 84(1)

Klewer v Director of Public Prosecutions

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