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[2003] NSWCA 308
respondent. Application for leave to appeal dismissed with costs.
The unrepresented appellant sought a last-minute adjournment by facsimile; the Court of Appeal proceeded in her absence because the request was late, not communicated to the Court, and the opponent was ready. On the merits, the Court held there was no meaningful inconsistency between a police officer's prior written statement that the appellant 'had to be physically removed' and his oral evidence that she was 'ejected'. Even assuming an inconsistency, the Court found no realistic chance that further questioning and the complex admissibility pathway under the Evidence Act would have changed the magistrate's decision. The application for leave to appeal was dismissed with costs.
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1,905 words · generated 22/08/2026
This Court of Appeal judgment arose from a private prosecution brought by Mrs Lucy Klewer against Mr Ian Walton which was dismissed by a magistrate on 10 December 2001 [5]. Mrs Klewer sought leave to appeal to the Supreme Court under s 104 of the Justices Act, challenging the magistrate's refusal to grant her leave to cross-examine a witness she had called, Sergeant Levey, about a prior written statement [6], [17]-[18].
No linked legislation citations have been extracted yet.
The procedural history included a late filing of the application for leave to appeal (16 days out of time), an initial refusal by Registrar Schell, and an order by Santow J on 28 May 2003 setting aside that refusal and extending time because the application was not plainly futile [8]. The application for leave to appeal ultimately came before the Court of Appeal on 14 October 2003 (Master Harrison's decision of 6 September 2002 being the lower court decision under review) [1], [8].
When the appeal was called, Mrs Klewer, who was self-represented, did not appear. The Court received evidence that a facsimile from her dated 12 October (two days before the hearing) was found in the opponent's solicitor's in-tray on the morning of the hearing. That facsimile primarily concerned another case but contained a handwritten P.S. seeking consent to a five-week adjournment in this Court because Mrs Klewer had university exams and had other court commitments; it requested a response by the following afternoon [2]-[3]. The opponent opposed any adjournment and was ready to proceed [4].
The Court decided to hear and determine the application in the appellant's absence, giving reasons grounded in the lateness and manner of notice, the absence of any communication to the Court, and the opponent's readiness and incurred costs [10]-[14]. On the merits, the Court analysed whether Sergeant Levey's oral evidence and prior written statement were inconsistent so as to enliven s 38(1)(c) Evidence Act and whether the magistrate's refusal to grant leave to cross-examine was an error of law [15]-[19]. The Court held there was no real inconsistency; even if there had been, there was no reasonable possibility that cross-examination and the complex admissibility pathway under the Evidence Act would have changed the outcome. Accordingly the application for leave had no prospect of success and was dismissed with costs [22], [26]-[29], [31].
Two distinct but connected decisions are central: (A) proceeding in the appellant's absence, and (B) the evidentiary/legal assessment under the Evidence Act.
A. Proceeding in absence: Hodgson JA considered practical and fairness factors. The adjournment request was communicated only by a late facsimile two days earlier and had not been given to the court; the opponent had incurred costs preparing for hearing and was ready to proceed; there was no adequate explanation or prior notice to the other party or the court. The judge expressly noted that an unrepresented litigant with concurrent proceedings should give advance notice and make a proper application if seeking an adjournment; a late facsimile without notifying the Court was inappropriate [11]-[13]. Given those factors, the Court considered it appropriate to deal with the application in the appellant's absence [10], [14].
B. Evidentiary/legal assessment: The central legal issue concerned s 38(1)(c) Evidence Act 1995, which allows the party who called a witness to question that witness with leave about any prior inconsistent statement. The Court asked first whether there was an explicit or logical inconsistency between the written statement and the oral evidence [20]. The written statement (paragraph 8) referred to an incident between 'staff and Mrs Klewer' and stated 'she had to be physically removed' [15]. The oral evidence described her being 'ejected' from the office and recorded that Mr Walton did not say he touched her [16]. Hodgson JA concluded there was no explicit inconsistency and, on a cautious reading, no substantial implicit inconsistency: 'ejected' and 'physically removed' are not different in substance, and the prior statement did not indicate that Walton physically removed her [21]-[22]. Meagher JA expressly agreed [30].
Even assuming an inconsistency existed, Hodgson JA analysed the realistic consequences of cross-examination and document admission under ss 43, 45, 60 and 106. He outlined two paths: (i) witness concedes the written statement and thereby introduces evidence of an admission by Walton that force had been used by someone, or (ii) witness sticks to oral evidence, prompting s 43 and possibly s 45, and then s 106 could permit the document as to credibility and s 60 could permit hearsay if not tendering the statement for its truth but for non-hearsay purpose. After considering those routes, the judge found no reasonable possibility that cross-examination would have caused Sergeant Levey to depart from his oral evidence or that admission of the document would have produced a materially different outcome at the magistrate's hearing [24]-[28]. Thus, on both the factual-inconsistency analysis and the no-real-prospects analysis, the appeal lacked real prospects of success [29].
Before this judgment, the Evidence Act provisions cited (ss 38, 43, 45, 60, 106, 192) governed leave to cross-examine about prior inconsistent statements and the admissibility of documents and hearsay. This judgment applies those provisions to a fact pattern where the prior statement does not explicitly attribute physical removal to the defendant, and where oral evidence uses a term ('ejected') not materially different in meaning from 'physically removed'.
After the judgment, the key applied points are:
The judgment therefore clarifies how those Evidence Act provisions are to be applied in a marginal fact-inconsistency setting and confirms a pragmatic approach to court management and adjournment requests from unrepresented parties.
Paragraph 12: "The normal way to do this would be to seek a short adjournment ... a letter should be sent to the Court ... with a copy being given to the other party." Plain English: If you have another court hearing, tell both the other side and the court well beforehand and formally ask to be excused or for an adjournment rather than relying on a late informal facsimile.
Paragraph 22: "There is no difference of substance between 'ejected' and 'physically removed' ... the previous statement did not indicate ... any physical removal was by Mr Walton himself." Plain English: The judge saw the two descriptions as meaning essentially the same thing and noted the written note did not say Walton personally did any removing, so there is no contradiction to justify further questioning.
Paragraph 26: "There is no reasonable possibility that Sergeant Levey would have departed from his oral evidence and embraced ... what was in the statement." Plain English: Even with more questioning, it was unlikely the witness would change his story in a way that would help the appellant.
Paragraph 29: "The appeal has no prospect of success ... dismissed with costs." Plain English: The Court considered the appeal unlikely to win and refused permission to appeal, ordering the appellant to pay legal costs.
This judgment will be particularly relevant where:
An unrepresented litigant seeks a last-minute adjournment by informal means (for example a late facsimile or message) and the opponent is fully prepared to proceed; the court may proceed in the litigant's absence where there was no adequate prior notice to the court and the other party [11]-[14].
A party seeks leave under s 38(1)(c) to question a witness about a prior written statement that uses different wording but does not explicitly attribute a materially different fact to the defendant. If the difference is one of wording only (e.g. 'ejected' v 'physically removed') and the prior statement does not attribute the act to the defendant, a court may find no sufficient inconsistency to warrant leave [20]-[22].
The proposed cross-examination would produce evidence that could only reach the tribunal by an indirect and potentially inadmissible path under ss 43, 45, 60 and 106; in such cases the court may determine there is no reasonable prospect that allowing cross-examination will change the outcome [23]-[28].
This judgment itself does not record later appellate treatment or citation by other authorities. The present document contains only the Court of Appeal's decision and references to the underlying Master Harrison decision and Santow J's earlier order in the same proceedings [1], [8], [14]. Therefore this judgment stands on its own in the present text; no post-decision treatment by later courts is discussed within this judgment.
Grounded in the judgment's reasoning and its context, the following issues remain open or are left for future clarification:
Threshold for 'substantial' inconsistency: Hodgson JA recognised that an implicit or substantial inconsistency (short of explicit logical contradiction) may suffice to enliven s 38(1)(c) [22]. The judgment did not attempt to define precise markers for when an inconsistency is 'substantial' rather than simply verbal. Future cases will need to delineate examples where a difference of wording does cross the threshold.
Application in closer cases where the prior statement more clearly attributes conduct to the defendant: Here the prior statement did not indicate Mr Walton did the physical removing; if a prior statement explicitly named the defendant as the actor, a different conclusion might follow. The judgment does not address where the line is drawn.
Degree of scrutiny before denying leave to cross-examine where admissibility paths under ss 43/45/60/106 are complex: Hodgson JA performed a pragmatic assessment of realistic outcomes. It remains a question how detailed that assessment must be before a reviewing court finds an error in the exercise of discretion, particularly where facts are closer and the potential admissibility chain is less attenuated.
Procedural safeguards for unrepresented litigants: The judgment provides practical direction about notifying courts and opponents of conflicts in hearing dates, but does not explore whether courts should adopt more proactive measures when an unrepresented party fails to appear after a late message (for example, striking a different balance where the absent party is litigating a criminal matter or has pressing disability or remote attendance difficulties).
This decision is fact-specific; it establishes how the Evidence Act provisions interact in a particular scenario and sets out pragmatic expectations for litigant conduct when seeking adjournments.
Disclaimer: This is a factual and textual analysis of the Court of Appeal judgment in Klewer v Walton [2003] NSWCA 308 based only on the judgment text provided. It is legal information, not legal advice. I can make mistakes. Before acting on, relying on, or using any draft or analysis from this output, get a qualified Australian lawyer to check it.
CITATION : Klewer v. Walton [2003] NSWCA 308 HEARING DATE(S) : 14 October 2003 JUDGMENT DATE : 14 October 2003
JUDGMENT OF : Meagher JA at 1; Hodgson JA at 2 DECISION : Application for leave to appeal dismised with costs.
CATCHWORDS : PROCEDURE - Adjournments - Unrepresented litigant involved in other proceedings - Request for adjournment in late communication to other party - No communication to or appearance in court - Adjournment refused. - EVIDENCE - Hearsay - Previous written statement by witness called by party - Leave to cross-examine sought and refused - Whether an error vitiating decision. LEGISLATION CITED : Evidence Act 1995 ss.38, 43, 45, 60, 106, 192 PARTIES : Lucy Klewer - claimant Ian Walton - opponent FILE NUMBER(S) : CA 41127/02 COUNSEL : No appearance for claimant Mr. P. See for opponent SOLICITORS : The claimant is self-represented Hannigans, Casino for opponent
LOWER COURT Supreme Court - Common Law Division JURISDICTION : LOWER COURT SC10266/02 FILE NUMBER(S) : LOWER COURT Master Harrison JUDICIAL OFFICER :
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41127/02 SC 10266/02
MEAGHER JA HODGSON JA
Tuesday 14 October 2003 KLEWER V. WALTON Judgment 1 MEAGHER JA: The Court has made its decision. I will ask Hodgson JA to give the first judgment. 2 HODGSON JA: There was listed for hearing before the Court this morning an application for leave to appeal from a decision of Master Harrison delivered on 6 September 2002. When the matter was called, there was no appearance by the claimant, who is unrepresented. 3 However, Mr See of counsel for the opponent told us that his solicitor had received a facsimile message from the claimant dated 12 October 2003, which the solicitor had seen for the first time in his in-tray this morning. This facsimile concerned another case. However, at the bottom there appeared a PS in handwriting to the effect that, in relation to the matter in the Court of Appeal listed for hearing on 14 October, the claimant requested that there be consent to a five-week adjournment. The claimant in this note said she had university exams on 18 November, and that 4, 11 and 25 November were suitable. It requested a response by facsimile by "tomorrow pm". The message concluded to the effect that the claimant was still in the District Court Sydney all week. The solicitor having seen this message only this morning had not yet responded to it. 4 Mr See told the Court that his instructions were to oppose any adjournment. The opponent was ready to proceed in the matter. He indicated that the opponent relied on the written response which was with the Court papers. 5 The proceedings in this Court arise out of the claimant's private prosecution brought against the opponent for assault and other offences, which was heard by a local magistrate, Mr O'Keefe, on 10 December 2001. On that day, the magistrate dismissed this prosecution. 6 The claimant appealed to the Supreme Court of New South Wales under s.104 of the Justices Act, claiming that the magistrate had made an error of law in refusing her leave to cross-examine a witness she had called in the case, namely one Sergeant Levey. However, as recorded by Master Harrison in paragraph 5 of her judgment, the claimant indicated that while she wanted the dismissal of the prosecution quashed, she did not want the matter remitted to the magistrate. 7 In the Draft Notice of Appeal provided by the claimant with the Court papers, she seeks orders setting aside Master Harrison's orders and setting aside the decision and orders of the magistrate, but does not seek the remission of the matter for a further hearing by a magistrate. 8 The claimant was sixteen days late in filing the application for leave to appeal. Registrar Schell refused an extension of time and dismissed the application. That decision was reviewed by Santow J on 28 May 2003, and on that date Santow J made orders setting aside the orders of Registrar Schell and extending the time for filing this application, stating that he could not conclude that the application was futile and doomed to failure. 9 The claimant has filed a summary of her argument dated 13 June 2003, and the opponent has filed a written response dated 22 July 2003. 10 In my opinion, the appropriate course is for the Court to deal with the application for leave to appeal in the absence of the claimant. In reaching that opinion, I would have regard to the following factors. 11 The matter was listed for hearing today, and there was no communication by the claimant to the opponent that an adjournment would be sought until the facsimile dated 12 October, that is last Sunday. Even if that facsimile had been brought to the attention of the solicitor yesterday, plainly preparations would have been concluded for the hearing today and substantial costs already incurred. There was no communication by the claimant to this Court by letter or otherwise, explaining her inability to attend. 12 I would comment in relation to this, that while I would recognise a difficulty faced by an unrepresented litigant who has proceedings in different courts on the same day, a person in that situation, if an adjournment is to be sought in one proceeding, should notify the other party well in advance of the date set for hearing and should in some appropriate way make an application to the court for an adjournment. The normal way to do this would be to seek a short adjournment in the other case, that is to be excused for a short period, and to appear in the Court to apply in person for an adjournment. If for some reason that is impossible, then at the very least a letter should be sent to the Court requesting the adjournment and giving the reasons, with a copy being given to the other party to the case. It is plainly quite inappropriate to seek an adjournment in the manner that has been done in this case, without any communication to the Court. 13 This matter has already involved a number of appearances in this Court with costs being incurred by the opponent. The claimant apparently does not in any event seek a new hearing of her prosecution, so the application is of little if any utility. 14 Finally, on the reasons for deciding to hear and dispose of the case today, the issues are in my opinion adequately canvassed in the decision of Master Harrison, the judgment of Santow J, and the written outlines of argument to which I have referred. 15 The point which the claimant wishes to argue on appeal arises in this way. In support of her case that she had been assaulted by the opponent, who was the headmaster of a school attended by the claimant's son, the claimant called a policeman, Sergeant Levey. Sergeant Levey had made a written statement dated 24 April 2001 in relation to a proposed prosecution of the claimant, paragraph 8 of which was as follows: 8. I later made a telephone call to Mr Ian Walton at John Paul College Coffs Harbour. I made inquiries with Mr Walton in relation to the incident involving the young person Robert Klewer. Mr Walton also informed me of an incident between staff at the College and Mrs Lucy Klewer. (That she had to be physically removed from the Office area due to her yelling abuse at staff and using foul language which could be heard all around the school). 16 In the transcript of Sergeant Levey's oral evidence the following appears: Q. Can you give us the conversation? A. I phoned Mr Walton in relation to the matter of the boys, and there was also conversation about the behaviour of Mrs Klewer in the office, and that she had to be ejected from the office due to her swearing and her yelling out, which could be heard right across the school.
Q. Now this, about Mrs Klewer being ejected from the office, are you talking about the office at the school, is that the case? A. Yes.
INFORMANT: Q. Can you describe "eject" - the way you described what you now say "ejection", those words you used - that Mr Walton used at the time, what were the actual words? A: The words - at no time did Mr Walton say that he touched you or used any force on you.
Q. I'm asking what words he used in that conversation? A. That conversation was in March of this year, the exact words he used I can't recall, however at no stage did he say to me that he touched you or used any force on you.
INFORMANT: Okay. Your Worship, if he can't recall can I seek to show him the statement to refresh his memory?
INFORMANT: Q. Paragraph 8? A. Yes.
Q. Can you tell the Court what words he used? A. No, that, that paragraph there is a, a sentence in brackets, which -doesn't use any first person.
O'CONNOR: Object. INFORMANT: It, it relates to- BENCH: Well he can only refresh his memory from that, and you're asking him to say what Mr Walton said.
INFORMANT: That's right. BENCH: And, that's - he's now refreshed his memory, he's had a look at it and he can read - ask him again.
Q. Now that you've looked at that statement do you recall what Mr Walton said to you? A. No your Worship, it's still the same. They're along the lines of that she had to be ejected from the office due to her behaviour, and at no time do I recall him saying that he had to touch her or use any force on her. 17 The magistrate had previously refused an application by the claimant to cross-examine Sergeant Levey, and after that evidence repeated that the claimant could not cross-examine him. 18 The claimant's submission is that there was an inconsistency between Sergeant Levey's oral evidence and his previous statement, that this enlivened s.38(1)(c) of the Evidence Act 1995, and that the magistrate was then required to consider the matters set out in s.192 of the Evidence Act in order to exercise a discretion. The claimant's submission is that the magistrate's failure to do so was an error of law which vitiated his decision to dismiss the prosecution. 19 Section 38 of the Evidence Act is in the following terms: 38. Unfavourable witnesses (1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about: (a) evidence given by the witness that is unfavourable to the party, or (b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or (c) whether the witness has, at any time, made a prior inconsistent statement. (2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39). (3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility. (4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs. (5) If the court so directs, the order in which the parties question the witness is to be as the court directs. (6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account: (a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and (b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party. (7) A party is subject to the same liability to be cross-examined under this section as any other witness if: (a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person, and (b) the party is a witness in the proceeding. 20 It does not appear to be submitted that paragraphs (a) or (b) of s.38(1) have any application, and in any event in my opinion they do not. In my opinion, it could not be said that in any substantial sense Sergeant Levey's evidence was other than neutral, and in my opinion there was no basis for suggesting that Sergeant Levey was not making a genuine attempt to give evidence. 21 In relation to paragraph (c), there is no explicit or logical inconsistency between Sergeant Levey's oral evidence and his prior statement. The prior statement, referring to an incident "between staff and Mrs Klewer" and stating that "she had to be physically removed", does not indicate that this physical removal was by Mr Walton, the opponent. 22 The question then is whether there is any implicit or what might be called substantial inconsistency, falling short though of logical or explicit inconsistency. In my opinion, inconsistency of that latter kind may be sufficient to enliven s.38(1)(c). However, in circumstances where the prior statement did not purport to set out exact words and where the present statement was to the effect that Mr Walton said the claimant had to be "ejected", I think the better view is that there was not such inconsistency as to engage s.38(1)(c), or to require consideration of the discretionary factors set out in s.192. In my opinion, there is no difference of substance between "ejected" and "physically removed"; and as I have said, in any event the previous statement did not indicate or even suggest that any physical removal was by Mr Walton himself. 23 I would add that consideration of s.43, 45, 60 and 106 of the Evidence Act suggest that, even if that view were wrong, an appeal could not in any event succeed. Those sections are in the following terms: 43. Prior inconsistent statements of witnesses (1) A witness may be cross-examined about a prior inconsistent statement alleged to have been made by the witness whether or not: (a) complete particulars of the statement have been given to the witness, or (b) a document containing a record of the statement has been shown to the witness. (2) If, in cross-examination, a witness does not admit that he or she has made a prior inconsistent statement, the cross-examiner is not to adduce evidence of the statement otherwise than from the witness unless, in the cross-examination, the cross-examiner: (a) informed the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement, and (b) drew the witness's attention to so much of the statement as is inconsistent with the witness's evidence. (3) For the purpose of adducing evidence of the statement, a party may re-open the party's case.
Last Modified: 10/17/2003 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.
Application for leave to appeal dismissed with costs.