Klewer v Attorney General in and for the State of New South Wales [2010] NSWCA 219 (29 September 2010)

Last Updated: 1 October 2010

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Klewer v Attorney General in and for the State of New South Wales [2010] NSWCA 219


FILE NUMBER(S):
2006/262000

HEARING DATE(S):
23 August 2010

JUDGMENT DATE:
29 September 2010

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

JUDGMENT OF:
McColl JA Campbell JA Sackville AJA

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
2006/262000

LOWER COURT JUDICIAL OFFICER:
Harrison J

LOWER COURT DATE OF DECISION:
5 February 2010

LOWER COURT MEDIUM NEUTRAL CITATION:
[2010] NSWSC 9

COUNSEL:
Applicant in person
K E Oliver (Respondent)

SOLICITORS:
Applicant in person
I V Knight, Crown Solicitor (Respondent)

CATCHWORDS:
VEXATIOUS LITIGANT- order made under s 84(1) of the Supreme Court Act 1970 that the applicant not institute any proceedings without leave – application for leave to appeal against the order – whether leave required under the Vexatious Proceedings Act 2008 to institute the leave application – whether leave to appeal required - leave to appeal refused.

LEGISLATION CITED:
Supreme Court Act 1970, ss 84, 101
Vexatious Proceedings Act 2008, ss 4, 5, 6, 8, 9, 13, 14, 15, 16, sch 1
Uniform Civil Procedure Rules 2005, Part 7, Div 9

CATEGORY:
Principal judgment

CASES CITED:
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170
Attorney General (NSW) v Klewer (No 2) [2009] NSWSC 454
Attorney General (NSW) v Klewer (No 3) [2010] NSWSC 9; 264 ALR 535
Attorney General (NSW) v Spautz [2000] NSWSC 45
Bole v Horton [1823] EngR 113; (1673) Vaugh 360; 124 ER 1113
Bristol-Myers Squibb Co v F H Faulding & Co Ltd [2000] FCA 316; 97 FCR 524
Commonwealth Bank v Heinrich (No 2) [2003] SASC 436
Conde v Gilfoyle and Anor [2010] QCA 109
Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423
Kay v Attorney-General [2000] VSCA 176; 2 VR 436
Niemann v Electronic Industries Ltd [1978] VR 431
Osborne v Rowlett (1880) 13 Ch D 774
Pedler v Hunters Hill Municipal Council [1976] 2 NSWLR 411
Shaw v McGinty (Attorney-General) [2006] WASCA 231
Valassis v McCabe [1999] NSWCA 423

TEXTS CITED:
R Cross and J W Harris, Precedent in English Law (4th ed, 1991)

DECISION:
1. The applicant is granted an extension of time to file an application for leave to appeal against the orders made on 5 February 2010.
2. The application for leave to appeal against the orders made on 5 February 2010 is dismissed.
3. The applicant is to pay the respondent's costs of the application.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA2006/262000

McCOLL JA

CAMPBELL JA

SACKVILLE AJA

29 September 2010

LUCY PATRICIA KLEWER v ATTORNEY GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES

Judgment

THE COURT

1 Ms Klewer (“the applicant”) seeks leave to appeal from orders made by the primary Judge (Harrison J) on 5 February 2010: Attorney General (NSW) v Klewer (No 3) [2010] NSWSC 9; 264 ALR 535 (“Principal Judgment”). On that date, his Honour made orders (“Relevant Orders”) that until further order:

“1. ... [the applicant] shall not without the leave of the Court institute any legal proceedings in any Court.

2. ... any legal proceedings instituted by the [applicant] before the making of order (1) shall not be continued without the leave of the Court .”

2 The primary Judge made the Relevant Orders pursuant to s 84(1) of the Supreme Court Act 1970 (“Supreme Court Act”), which then provided as follows:

“(1) Where any person (in this subsection called the vexatious litigant) habitually and persistently and without 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 the application of 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.

(2) Where any person (in this subsection called the vexatious litigant) habitually and persistently and without reasonable ground institutes vexatious legal proceedings against any person (in this subsection called the person aggrieved), whether in the Court or in any inferior court, the Court may, on the application by the person aggrieved, order that the vexatious litigant shall not, without leave of the Court, institute any legal proceedings against the person aggrieved in any court and that any legal proceedings instituted by the vexatious litigant against the person aggrieved in any court before the making of the order shall not be continued by the vexatious litigant without leave of the Court.

(3) The Court may from time to time rescind or vary any order made by it under subsection (1) or subsection (2).

(4) Where the Court has made an order under subsection (1) or subsection (2) against any person, the Court shall not give that person leave to institute or continue any proceedings unless the Court is satisfied that the proceedings are not an abuse of process and that there is a prima facie ground for the proceedings.”

3 Section 84 of the Supreme Court Act has been repealed by the Vexatious Proceedings Act 2008 (“VP Act”), which came into force on 1 December 2008. However, the proceedings instituted by the Attorney General against the applicant under s 84(1) of the Supreme Court Act were pending immediately before the commencement of the VP Act. Accordingly, they could be continued and dealt with as if s 84 of the Supreme Court Act had not been repealed: VP Act, sch 1, cl 3(1).

4 If the Supreme Court makes an order in relation to an application continued pursuant to sch 1, cl 3(1) of the VP Act and the order 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 proceeding order made under [the VP Act] by the Supreme Court ... and may be varied, set aside or reinstated accordingly” (VP Act, sch 1, cl 3(1)).

It follows that the orders made by the primary Judge can be varied or set aside pursuant to the powers conferred by s 9 of the VP Act, to which we refer later ([10] below).

5 The primary Judge pointed out in the Principal Judgment (at 539 [13]-[18])) that the applicant had instituted 60 separate proceedings in the Local Court, the District Court, the Supreme Court and the Court of Appeal. She had partially succeeded in one proceeding, concerning the quashing of a criminal conviction and had compromised another proceeding. The applicant had not succeeded in any of the remaining 58 proceedings which had been dismissed, struck out as incompetent, discontinued or never served. In addition, the applicant had filed 13 notices of motion, all of which apparently were unsuccessful.

THE VP ACT

6 The VP Act empowers a court to make a vexatious proceedings order against a person who has frequently instituted or conducted vexatious proceedings in Australia: s 8(1). The orders that may be made by the Supreme Court include an order prohibiting the person from instituting proceedings in New South Wales or any other order the Court considers appropriate in relation to the person: s 8(7).

7 The expression “vexatious proceedings” is defined in s 6 to include:

“(a) proceedings that are an abuse of the process of a court or tribunal, and

(b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and

(c) proceedings instituted or pursued without reasonable ground, and

(d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.”

8 If a court makes a vexatious proceedings order, that person may not institute proceedings of the kind to which the order relates without the leave of an appropriate court under s 16: s 13(1). The term “proceedings” is defined to include any calling into question of a decision, whether or not a final decision of a court and whether by appeal or in another way: s 4(c). The term “institute” is defined, in relation to civil proceedings, to include the making of an application that may be necessary before proceedings can be started against or in relation to a party: s 5(1)(a).

9 A person subject to a vexatious proceedings order may apply to an appropriate court for leave to institute proceedings that would otherwise be prohibited: s 14(1), (2). The applicant for such leave is required to comply with procedural requirements. These include filing an affidavit that lists all proceedings he or she has instituted in Australia, whether before or after the commencement of the VP Act: s 14(3). In addition, before the Court grants an application under s 14, it must order that the applicant serve “relevant persons” with a copy of the application and affidavit: s 16(1)(a), and give each relevant person an opportunity to be heard (s 16(1)(b)).

10 Section 15 of the VP Act provides that an appropriate court must dismiss the application under s 14 if it considers that :

“(a) the affidavit required by section 14(3) does not substantially comply with that subsection, or

(b) the proceedings are vexatious proceedings, or

(c) there is no prima facie ground for the proceedings.”

Section 16(4) states that the court may grant leave under s 14 only if satisfied that:

“(a) the proceedings are not vexatious proceedings, and

(b) there are one or more prima facie grounds for the proceedings.”

11 A court may vary or set aside a vexatious proceedings order. It may do so either on application by a party to the original proceedings or on its own motion: s 9(1), (2).

THE APPLICATIONS TO THIS COURT

Does the Applicant Require Leave to Appeal?

12 An appeal lies to the Court of Appeal from a judgment or order of the Court in a Division: Supreme Court Act, s 101(1). However, an appeal does not lie to the Court of Appeal, except by leave, from an interlocutory judgment or order in proceedings in the Court: s 101(2)(e). Further, even a final judgment or order in proceedings in the court requires leave unless it is an appeal involving more than $100,000: s 101(2)(r).

13 A substantial body of authority holds that an order of the kind that can be made under s 84(1) of the Supreme Court Act or under s 8 of the VP Act is interlocutory. If that authority applies in New South Wales a person subject to such an order requires leave to appeal to the Court of Appeal, pursuant to s 101(2)(e) of the Supreme Court Act.

14 The reasoning adopted in the cases is that if an order in the nature of a vexatious proceedings order can be varied or set aside (as was provided by the repealed s 84(3) of the Supreme Court Act and is now provided by s 9 of the VP Act), the order does not finally determine the rights of the parties and is therefore interlocutory and not final: Attorney General (NSW) v Spautz [2000] NSWSC 45, at [10]-[11], per Brownie AJ; Kay v Attorney-General [2000] VSCA 176; 2 VR 436, at 447-451 [31]-[40], per Chernov JA (with whom Ormiston and Batt JJA agreed); Shaw v McGinty (Attorney-General) [2006] WASCA 231, at [18], per Wheeler JA (with whom Steytler P and Buss JA agreed).

15 In Kay v Attorney-General, Chernov JA pointed out (at 449 [24]) that in Pedler v Hunters Hill Municipal Council [1976] 2 NSWLR 411, the Court of Appeal expressed the view that an order made pursuant to s 84(2) of the Supreme Court Act, in relation to a proposed appeal to the Privy Council, was a final order for the purposes of the Order-in-Council governing such appeals. Reynolds JA, with whom Moffitt P and Samuels JA agreed, said (at 14) that it was significant that the order had been made at the conclusion of independent proceedings, thereby disposing of them. The order had not been made in the course of existing proceedings, nor had it been made as a preliminary to the assertion of an identifiable main claim, as had occurred in Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423. Therefore the order was to be regarded as final, rather than interlocutory.

16 Chernov JA in Kay v Attorney-General distinguished Pedler, on the ground that the Court of Appeal in the latter case did not take into account that any order under s 84(2) of the Supreme Court Act could have been rescinded or varied pursuant to s 84(3). The absence of any reference in Pedler to the power conferred by the Supreme Court Act to set aside or vary an order made under s 84(2) might be grounds for suggesting that the decision was made per incuriam and therefore should not be followed. However, it would not be a basis, at least in New South Wales, for distinguishing the decision if it is otherwise precisely in point. That is so notwithstanding that other authority in this court, Valassis v McCabe [1999] NSWCA 423, proceeds on a basis that assumes (though without expressly deciding) that leave to appeal against an order declaring a person to be a vexatious litigant was necessary.

17 Pedler concerned an appeal from a primary judge, who held that an order under section 84(2) was an interlocutory order, and that thus that an appeal from that order lay to the Privy Council only by leave, which the judge declined to grant. The judges in this court held that the trial judge had been wrong in categorising the order as interlocutory, and thus as requiring leave because it was interlocutory. They went on to hold that there was a separate reason for leave being required for any appeal to the Privy Council, namely because it was impossible to quantify the claim as amounting to $500 or more.

18 There is room for argument about whether the finding in Pedler that the order was a final one is part of the ratio decidendi of the case. There is a theory of precedent whereby a case is authority only for those matters that are essential for the order in which case results. R Cross and J W Harris, Precedent in English Law (4^4th ed, 1991) (“Cross on Precedent”) at 37, give an early example in the decision of Vaughan CJ in Bole v Horton (1673) Vaugh 360 at 382; [1823] EngR 113; 124 ER 1113:

“An opinion given in court, if not necessary to the judgment given of record, but that it might have been as well given if no such, or a contrary had been broach’d, is no judicial opinion; but a mere gratis dictum.”

19 On that theory, because the decision of the Court of Appeal in Pedler would have been the same if the judges had expressed no view, or the contrary view, about whether the decision below was final, anything that the Court of Appeal said on whether the decision in the court below was final or interlocutory was an obiter dictum. See also Osborne v Rowlett (1880) 13 Ch D 774, at 785. Such a theory has to overcome or be modified to deal with the situation of cases that have two ratios, either of which would have been sufficient for the conclusion, and other situations that Cross on Precedent deals with at 81-84.

20 Cross on Precedent at 72, prefers the view that:

“The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him, or a necessary part of his direction to the jury.”

21 Similarly, Finkelstein J has expressed the view that the ratio of a case includes any point of law that is put in issue by the parties and which the judge decides that he should resolve although his Honour acknowledged that there is authority to the contrary: Bristol-Myers Squibb Co v FH Faulding & Co Ltd [2000] FCA 316; 97 FCR 524 at 570 ff [148]–[160] (Black CJ and Lehane J did not find it necessary to consider the issue.) If one were to apply that theory, deciding that the primary judge was wrong in treating the decision as interlocutory was a necessary step on the path by which the Judges in this Court in Pedler reached their conclusion.

22 In the present case there has been no examination in the argument before us of whether the aspect of Pedler that decided that the decision below was final was part of the ratio decidendi, nor (if it was) has there been an application to re-argue the correctness of that aspect of Pedler. In all these circumstances it is preferable to reach a conclusion by a route that neither endorses nor disapproves the aspect of Pedler that related to the decision being final.

23 Another aspect of Pedler, that leave to appeal was needed because the claim did not involve a civil right worth more than $500, is applicable in the present case. Leave to appeal is needed in the present case because either the order below is interlocutory, or if it is not the case does not involve a matter at issue of the value of $100,000 or more.

Does the Applicant Also Require Leave to Institute the Application for Leave to Appeal?

24 Counsel for the Attorney General filed written submissions prior to the hearing in this Court contending that it was not enough for the applicant to seek leave to appeal from the Relevant Orders under s 101(2)(e) of the Supreme Court Act. Counsel submitted that by seeking leave to appeal against the Relevant Orders, the applicant had ”instituted proceedings” within the meaning of ss 4 and 5 of the VP Act. Accordingly, so he argued, the applicant required leave under s 14(2) of the VP Act to file a summons seeking leave to appeal from the Relevant Orders. It followed that in order to obtain leave under s 14(2), the applicant had to satisfy this Court that her application for leave to appeal from the Relevant Orders was not itself a vexatious proceeding. To do that, the applicant had to show that she had not instituted or pursued the application for leave to appeal without reasonable grounds (s 6(c)) and that there were prima facie grounds for the application for leave to appeal (s 16(4)).

25 After the hearing had concluded and very shortly before judgment was due to be delivered, counsel for the Attorney General informed the Court that, subsequent to the hearing, he had located authorities which were directly against the submissions he had previously advanced. On the basis of those authorities, he stated that the Attorney General no longer wished to maintain the submission that the applicant was required to obtain leave pursuant to s 14(2) of the VP Act to file a summons seeking leave to appeal against the Relevant Orders.

26 The cases referred to by counsel are Kay v Attorney-General, at [26]-[30], per Chernov JA; Commonwealth Bank v Heinrich (No 2) [2003] SASC 436, at [6]-[11], per Debelle J; Shaw v McGinty (Attorney-General), at [6]-[17], per Wheeler JA; Conde v Burchell & Horsey Lawyers [2010] QCA 109, at [15]-[30], per Fraser JA, with whom McMurdo P and Peter Lyons J agreed. The effect of each of these decisions is that an appeal against an order prohibiting a person from instituting proceedings does not itself involve the person in instituting proceedings, either for the purposes of the order itself or of provisions such as s 13 of the VP Act.

27 Since the Attorney General has withdrawn his earlier submissions, it is appropriate to proceed on the basis, without finally deciding the issue, that the applicant does not require leave under s 14(2) of the VP Act to file a summons seeking leave to appeal from the Relevant Orders. Further reasons for adopting that course are that none of the cases referred to by counsel involve the VP Act, a final decision of the issue would require an analysis of NSW legislation that bears upon the topic, and the submissions made to us do not attempt that analysis. As well, there is an aspect of the decision in Kay v A-G at [28] that has been commented on in Shaw v McGinty at [14] and may require further consideration.

The Applications

28 It follows from what has been said that the applications before this Court are the following:

(a) a proposed application for an extension of time in which to file a summons for leave to appeal against the Relevant Orders; and

(b) if the proposed extension of time is granted, a proposed application for leave to appeal against the Relevant Orders.

29 The sole ground on which the applicant relies to challenge the orders made by the primary Judge is that she was denied procedural fairness by his Honour in refusing to adjourn the Attorney General’s application for orders pursuant to s 84(1) of the Supreme Court Act. In her oral submissions, the applicant identified the basis of her complaint to be a denial of procedural fairness in connection with the adjournment application which was rejected by the primary Judge on 15 May 2009: Attorney General (NSW) v Klewer (No 2) [2009] NSWSC 454 (“Adjournment Judgment”). The applicant also complains that his Honour did not address in his Principal Judgment a subsequent adjournment application made by her on 25 November 2009.

30 The applicant filed a handwritten affidavit in which she clearly attempted to comply with the requirement stated in s 14(3) of the VP Act. The Attorney General did not dispute that the applicant’s affidavit in fact complied with the statutory requirement.

31 It appears that no order was made prior to the hearing directing the applicant to serve each “relevant person” including the Solicitor General, with a copy of her application and supporting affidavit. The Solicitor General was the only “relevant person” who had not been served with the application prior to the hearing. In the light of the submissions made by the Attorney General as to the need for the applicant to obtain leave under s 14(2) of the VP Act, the Court directed at the hearing that the applicant serve the Solicitor General as contemplated by s 16(2) of the VP Act. As well, the Court ordered the Registrar of the Court to serve the Solicitor General.

32 Since the Attorney General no longer contends that the applicant requires leave under s 14(2) of the VP Act, the directions made by the Court were not in truth necessary. Nonetheless, it is appropriate to record that the Solicitor General informed the Court that he did not wish to be heard on any application under the VP Act.

PROCEDURAL HISTORY

33 The applicant’s claim that she was denied procedural fairness must be assessed in the context of the extraordinary procedural history of the Attorney General’s application for orders under s 84(1) of the Supreme Court Act. There can have been few proceedings in New South Wales in which a litigant has made so many adjournment applications.

34 The Attorney General’s application for orders under s 84(1) of the Supreme Court Act was originally listed for hearing before the primary Judge on 17 March 2008. On that date, the applicant appeared by telephone link and applied for an adjournment. The primary Judge refused to grant the adjournment and proceeded to hear the Attorney General’s application in the absence of the applicant. At the conclusion of the hearing on 18 March 2008, the primary Judge reserved judgment.

35 Before his Honour delivered judgment, a further telephone hearing took place in order to permit the applicant to make an application for the resumption of the hearing so that she could defend the Attorney General’s claim for orders under s 84(1) of the Supreme Court Act. At that hearing, the applicant claimed that she would not be able to attend court in Sydney on any occasion in the then foreseeable future because of her medical condition. The matter was adjourned in order to give the applicant an opportunity to adduce medical evidence to support her contention.

36 At a telephone hearing on 27 March 2008, the primary Judge stood the matter over until 16 June 2008. His Honour made directions as to the filing of medical reports on which the applicant proposed to rely.

37 The matter came before the primary Judge, as scheduled, on 16 June 2008. At that time, his Honour stood the matter over until 1 September 2008 for continuation of the hearing, on the basis that the Attorney General would recommence its case afresh. All of the material tendered and all submissions filed at the hearing held on 17 and 18 March 2008 were made available to the applicant well in advance of the resumption of the scheduled hearing on 1 September 2008. That date was also chosen with a view to ensuring that if the applicant wished to apply for an adjournment on the basis of her medical condition, she would be able to do so with the benefit of medical reports from practitioners that she was due to see before then.

38 On 27 August 2008, the applicant applied again via a telephone hearing to vacate the hearing date of 1 September 2008. The primary Judge dismissed this application.

39 On 1 September 2008, the applicant was represented by counsel who informed the Court that he had no instructions to appear on the hearing, but was instructed to apply for an adjournment. The primary Judge made directions for the applicant to file any evidence upon which she relied in support of the application for adjournment. His Honour stood the proceedings over until 17 October 2008, in anticipation of the filing of an application for adjournment of the substantive hearing.

40 On 17 October 2008, the primary Judge listed the proceedings for hearing at Coffs Harbour on 11 May 2009 with a preliminary estimate of two weeks. Further orders were made directing the applicant to file evidence in support of her medical condition. The deadline was to be no later than four weeks before the commencement of the proceedings. The decision to remove the proceedings from Sydney to Coffs Harbour was made in order to suit the convenience of the applicant and the medical practitioners from whom she wished to adduce evidence.

41 On or about 13 February 2009, the applicant made a further application to vacate the hearing date scheduled for 11 May 2009. On this occasion, the primary Judge confirmed the hearing date of 11 May 2009 and directed any further application by the applicant for adjournment or summary dismissal of the Attorney General’s summons be made returnable before the Court on that date. Consequential directions were also made.

42 On 17 March 2009, the primary Judge rejected yet another application by the applicant to vacate the hearing. In the course of that application, the applicant foreshadowed that she would no longer seek to rely upon medical reports originally tendered in support of her motion to have the Attorney General’s summons dismissed. In his ex tempore judgment confirming the hearing date, his Honour indicated that the scheduled hearing would be used to consider whether the applicant’s health would permit her to defend the proceedings. His Honour said that it was:

“important once and for all that [the applicant’s] fitness properly to attend to these proceedings in a timely and reasoned way to her own best advantage, particularly having regard to the obvious fact that she is unrepresented, should be determined finally once and for all.”

43 On 6 May 2009, the applicant sought a Court-appointed referral for legal assistance in accordance with the Uniform Civil Procedure Rules 2005 (“UCPR”), Part 7, Div 9. His Honour refused the application and delivered detailed reasons on 8 May 2009 for that decision. In his reasons for judgment, his Honour noted that the applicant now sought to have the proceedings referred to Sydney, even though she had previously been content for them to be listed for hearing in Coffs Harbour. Her application for the matter to be dealt with in Sydney was apparently put on the basis that the Court or Registry staff at Coffs Harbour held some kind of ill-feelings towards her.

44 In rejecting the application by the applicant for a referral for legal assistance, the primary Judge accepted that both the applicant and the Court would benefit from the appointment of a qualified legal practitioner to represent her. However, two previous orders for such a referral had been made. The applicant had provided no satisfactory explanation as to why she was no longer represented.

45 His Honour expressed considerable doubt as to whether the applicant’s application had not been prompted by a desire to frustrate the commencement of the hearing on 11 May 2009. He observed that the hearing date had been allocated since late in 2008. The application for referral had been made neither early nor promptly.

46 On 11 May 2009, the scheduled hearing commenced. The applicant’s application for an adjournment was heard over 5 hearing days from 11 to 15 May 2009. In the course of the hearing, the applicant appeared for herself and tendered a number of medical reports. Several medical practitioners were cross-examined by counsel for the Attorney General.

47 Late in the afternoon of 11 May 2009, the applicant became ill and was taken to hospital. She returned to court the next morning, but experienced a second episode at 4 pm that afternoon (12 May 2009). Again she returned to court on the following day (13 May 2009) and continued with her adjournment application.

48 His Honour delivered the Adjournment Judgment ex tempore on 15 May 2009. The judgment is some 18 pages in length and deals in detail with the medical evidence adduced on behalf of the applicant and tested in cross-examination.

49 The primary Judge said that in his view, the most important medical opinions were those formed by doctors who had recently treated or examined the applicant. His Honour recorded that the treating doctor at Coffs Harbour Health Campus had expressed the opinion that the applicant’s episode in court on 11 May 2009 was an acute reaction to stress and did not indicate any coronary disease, despite the applicant experiencing chest pains at the time. In the course of his cross-examination this doctor stated that the applicant was quite capable of participating in a court hearing and that her participation would not put her health at risk. Indeed, in his opinion, it was better for the applicant to have the proceedings concluded and not to have to confront an ongoing court process.

50 A second doctor who had treated the applicant after an episode in court also reported that her tests showed no cardiac abnormality. This doctor considered that the applicant, after her discharge from hospital, would be able to attend the court hearing.

51 A doctor who had previously treated the applicant initially gave evidence that, if circumstances had not changed since he had treated her, his advice would be to reduce her involvement in litigation because her physical condition deteriorated at times of high stress. However, in cross-examination the doctor’s attention was drawn to additional material. The doctor then changed his opinion. He accepted that the applicant would be able to understand submissions and questions while in court. He also accepted that, even though the applicant might experience some symptoms as a consequence of stress, she would be capable of attending court and participating in the hearing.

52 After dealing with the medical evidence, the primary Judge continued as follows:

“58 It is important that I also record my observations of the events of this past week. Mrs Klewer appears for herself without legal assistance. Although she has some relevant qualifications she is not a qualified lawyer and has not been admitted to practise as such. During the course of this week, in varying degrees, I have observed her to exhibit outwards signs of apparent discomfort, including clutching her chest, holding her head in her hands, exhibiting facial expressions consistent with the experiencing of pain, as well as the dramatic events of Tuesday afternoon in court, and the events of the previous afternoon, partly in court, and so I am informed, later outside court.

59 The medical opinion for all relevant intents and purposes seems to me to be unanimous about the nature and extent of the condition or conditions from which Mrs Klewer suffers. Even the report lately tendered from Mr Peter Stoker dated 30 July 2007 described her as then suffering from a pain disorder due to physical and psychological factors. It is now known that Mrs Klewer's pain is not caused by physical factors, but Mr Stoker's opinion about the relationship between pain and psychological factors appears to remain valid and corroborated.

60 I also indicated during the course of these proceedings that any attempt by Mrs Klewer to rely upon what seems to be an obvious and unchallenged fact, that she is disadvantaged by the absence of legal representation, is not a matter that is pertinent to the determination of her ability to continue to appear in these proceedings, or to attend them unrepresented. The present application is necessarily limited to her medical conditions and any impediment to her involvement in these proceedings that is caused by them.”

53 Later, his Honour said:

“63 During the course of the last five days, despite some dramatic and less dramatic events involving Mrs Klewer's health, she has to my observation conducted herself before me in a way that did not appear outwardly to be adversely affected by her medical condition. The existence of this condition described by all of the medical practitioners who have expressed a view about it is not in doubt. Any suggestion that her condition has been feigned or staged for strategic purposes is no longer available as the result of the evidence of Dr Munro that I earlier mentioned.

64 I am required to determine this case upon the basis of medical evidence or other like material that casts some light upon Mrs Klewer's medical conditions and the relationship between them and her ability to come to court. Whatever view one might have about the unsatisfactory circumstance that requires Mrs Klewer to attend to these proceedings in her present condition, all of the medical opinion speaks with one voice and that is that Mrs Klewer is presently capable of being here. Dr Munro is even of the view that Mrs Klewer's condition would be better the sooner these proceedings are concluded. I hasten to observe that that is a matter of comment and observation but I do not take it into account as having any significance in the determination of this application. Mrs Klewer's appearance here during the course of this week, almost in a self defeating and contradictory way, itself supports and confirms the unanimous medical opinion that she is fit to do so.” (Emphasis added.)

54 The primary Judge expressed his sympathy in relation to a medical condition experienced by the applicant’s son. However, his Honour concluded that the medical evidence did not satisfy him that the proceeding should be interrupted or forestalled because of the applicant’s obligations as carer towards her adult son.

55 His Honour concluded that, in the circumstances, he had no alternative but to refuse the application for an adjournment. It was therefore necessary to proceed with the balance of the hearing, which he set down for the following Monday, 18 May 2009.

56 Before the hearing recommenced on 18 May 2009, the applicant sent a series of facsimiles to the chambers of the primary Judge claiming that she would not be able to appear at the hearing because of health problems. In view of the judgment he had delivered on 15 May 2009, his Honour indicated that he was not minded to adjourn the proceedings. However, he adjourned the matter until 2 pm on 18 May 2009, to allow contact to be made with the applicant in order to ascertain her intentions.

57 The applicant appeared in court at 2 pm on 18 May 2009 and renewed her application for an adjournment. Once again, his Honour declined to grant the adjournment. Counsel for the Attorney General proceeded to outline his case and to tender evidence.

58 On 19 May 2009, the applicant forwarded to the primary Judge further materials in support of an adjournment application. The primary Judge delivered a judgment rejecting the further application.

59 On 20 May 2009, the applicant made yet another application for adjournment, providing an additional medical report and other material. The primary Judge expressed the view that the appropriate course was to proceed on the basis that the applicant was absent and unrepresented for no good reason, or for no good reason associated with her health. Accordingly, he treated the events of the day as concluding the hearing and reserved his decision.

60 His Honour noted that he would be unable to deliver judgment in the proceedings for at least 8 weeks. Accordingly, he thought that the applicant would suffer no procedural prejudice if a stay were refused. She could make such application as she considered appropriate within that period.

61 The applicant subsequently filed an application again seeking a referral for pro bono assistance and for the proceedings to be stayed. A hearing on the motion took place by telephone on 30 October 2009.

62 The primary Judge dismissed the applications for referral and for a stay of the proceedings. He directed the applicant to file and serve any written submissions in the principal proceedings no later than 18 December 2009. The applicant filed no such submissions.

63 On 25 November 2009, the applicant faxed a notice of motion to the primary Judge’s chambers in which she again sought orders that the main proceedings be permanently stayed or dismissed. It is evidently this application that the applicant referred to as the adjournment application she made on 25 November 2009. His Honour wrote to the parties to inform them that this application for a permanent stay or dismissal would be dealt with in the Principal Judgment.

64 In the Principal Judgment, the primary Judge first addressed the applicant’s motion of 25 November 2009. His Honour observed (at [4]) that the applicant had made many such applications in the past and that in making them the applicant:

“has had scant, if any, regard for the rules or procedures of this Court, and even less regard for the need to present a case supported by evidence to establish it according to the law. In essence, Ms Klewer's motion appears to be predicated upon the unestablished contention that the Attorney-General's case against her is hopeless, and that she can demonstrate it by simply saying so.”

65 The primary Judge then said this:

“6 It is neither convenient nor necessary presently to set out the long and troublesome history of these proceedings to date. It is sufficient to observe that Ms Klewer has never come to terms with the fact that she would ultimately have to confront the Attorney- General's application for the orders that are sought. She has assiduously attempted to avoid doing so by manifold applications of every type including seeking adjournments or venue changes for no good purpose and without proper support. Earlier judgments that I have delivered, as well as those of other judges in this Court and elsewhere, bespeak recognition of this attitude in high volume. Ms Klewer's latest edition of the application is an example of this. She has had since the commencement of these proceedings more than sufficient time within which to assemble and file any relevant evidence on the substantive issues that she wished to rely on but she has not done so. Ms Klewer has instead directed the vast bulk of her not inconsiderable energies to irrelevant matters, with the apparent intention of promoting largely repetitive and unmeritorious interlocutory points at the expense of the main issue. The 2-week hearing conducted before me, in Coffs Harbour in May 2009 to suit Ms Klewer's convenience, was significantly affected by just such an approach. She cannot now reasonably expect that she will be able to forestall the final determination and adjudication of the principal proceedings again in order to prepare a defence that she has ignored to date.

...

10 I have formed the view that Ms Klewer's latest application that the proceedings be summarily dismissed or permanently stayed is misconceived and that any further delay in the final disposition of this case for the purpose of considering it is unwarranted. I also consider, having regard to the history of this matter, that her reinvigoration of this application would amount to an abuse of the process of the court if it were intended by Ms Klewer that I should deal with it otherwise than as a submission by her in aid of her defence of the principal proceedings. That is how I propose to treat it.

11 I also note that on 30 October 2009 when I ordered that Ms Klewer file her final written submissions by 18 December 2009, she effectively acknowledged and accepted that the proposed date was suitable to her in all of the circumstances. The subsequent affidavit material quoted earlier, in which no complaint is raised about what was proposed, is a tacit recognition by Ms Klewer of that fact.”

66 After considering the evidence adduced on the Attorney General’s application, the primary Judge said that it was important:

“to record that Ms Klewer made no submissions on the issue of why the orders sought against her should not be made. That is not to say that Ms Klewer did not contest the making of the orders, as her vigorous and passionate opposition to the Attorney-General's claim throughout the proceedings unambiguously reveals. Ms Klewer did not, however, formulate or present reasons why she should succeed in this case in any logical or meaningful or comprehensible way. In particular, Ms Klewer did not offer me at any stage of the proceedings a single reason why I should conclude that any particular proceeding commenced by her, upon which the Attorney General relies, was not vexatious. I should indicate that I would have been greatly assisted by submissions of this type. This is because Ms Klewer quite obviously and somewhat tragically takes a quite different view to the commencement and continuation of proceedings, as a response to the ups and downs of daily life, than most members of the community. Her particular motivations or reasons for the commencement of these manifold actions might arguably have gone a long way to explaining what on one view appears inexplicable, even if in the final analysis the test of what is vexatious is not one to be decided solely by reference to her subjective intentions. I re-emphasise that from my point of view it is extremely regrettable that Ms Klewer did not attend to these submissions in her own best interests with the same determination and apparent single-mindedness that she brought to the commencement of the proceedings in the first place.”

67 His Honour proceeded to make the orders set out above (at [1]).

REASONING

68 The High Court has cautioned that it is unwise to lay down rigid and exhaustive criteria for determining whether leave to appeal from an interlocutory order should be granted: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170, at 175, per Gibbs CJ, Murphy, Aickin, Wilson and Brennan JJ. Nonetheless, it is rarely appropriate to grant leave unless the decision at first instance is attended with sufficient doubt to warrant its reconsideration or substantial injustice would result if leave were refused: Niemann v Electronic Industries Ltd [1978] VR 431, at 438, per Murphy J.

69 It is important to appreciate that the only ground upon which the applicant relied to challenge the orders made by the primary Judge was denial of procedural fairness. Neither the applicant’s written submissions (both before and after the hearing) nor her oral submissions identified precisely how the primary Judge was said to have departed from the requirements of procedural fairness in rejecting the applicant’s adjournment application during the week of 11 May 2009 or in rejecting the many adjournment applications made at other times.

70 The applicant’s oral submissions included assertions about her medical condition and what were said to be difficulties with the medical evidence. These submissions, however, had little or no bearing on the question of procedural fairness and, in any event, cast no doubt on the primary Judge’s decision to proceed with the hearing in May 2009, the manner in which he dealt with her application made on 25 November 2009 or the orders ultimately made by his Honour.

71 The procedural history of the Attorney General’s application shows that the present applicant was afforded every opportunity over a very long period of time to advance her case for adjournment. She was also given every opportunity to adduce evidence and make submissions in opposition to the Attorney General’s application. The adjournment application determined by the Adjournment Judgment was heard over five days. During the hearing, the primary Judge gave the applicant sympathetic consideration and considerable latitude in the presentation of her case, bearing in mind her unrepresented status and her apparent health difficulties. His Honour clearly took into account the serious consequences for the applicant of making the orders sought by the Attorney General.

72 The primary Judge was fully entitled to express the views he did in the Principal Judgment about the applicant’s attitude to the proceedings and her unwillingness to take advantage of the opportunities afforded to her. The fact that the applicant decided not to take advantage of those opportunities cannot establish an arguable case that the applicant was denied procedural fairness.

73 The applicant has not demonstrated any basis for suggesting that the making of the Relevant Orders was attended with sufficient doubt to warrant their reconsideration. On the contrary, the material before this Court indicates that the primary Judge went out of his way to ensure that the applicant was accorded a full measure of procedural fairness. Nor has any basis been established for contending that the applicant would suffer injustice if leave to appeal was refused.

74 The applicant should be granted any extension of time required to file her application for leave to appeal against the Relevant Orders. The application for leave to appeal should, however, be dismissed. The applicant should pay the Attorney General’s costs of the application.

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LAST UPDATED:
1 October 2010